reserving $100.00 to discharge what I think is a legitimate charge due another against this fund. Yours very truly, JNO. C. HART, Attorney-General. June 16th, 1908. GOVERNOR HOKE SMITH, DEAR SIR-I have investigated the petition of John Harper asking for commutation or respite of his sentence upon the ground that he will on the reassembling of Murray superior court file his extraordinary motion for a new trial. Harper was convicted of murder in Murray superior court and sentenced to be hanged. He killed the sheriff of Murray County who was seeking to arrest him while at the time he was a fugitive from justice in Fannin County, charged also with the offense of murder there. He filed his motion for a new trial which being overruled was carried to the Supreme Court and by that court the judgment was affirmed. See 129 Ga. 770. The question therefore raised is whether or not as Chief Executive under the power conferred upon you by the Constitution to respite, pardon, commute, you should, under the application, respite until the reassembling of Murray superior court. I assume you have authority under the Constitution of this State to delay the execution until the court convenes, but that authority will not be exercised unless there is ground for the belief that the extraordinary motion purposed to be filed is meritorious. The ground upon which the motion is to be predicated is a witness has been found who would testify to a certain state of facts that if true would reduce the homicide, or amount to justification. This witness is the only eye witness to the homicide and was present and sworn at the trial of Harper, but was not introduced as a witness. The ground for this extraordinary motion is predicated upon the idea that it is newly discovered testimony, for unless it be regarded as newly discovered testimony there is, of course, no merit in the contention. May it be regarded under the facts as newly discovered testimony? This would be impossible. The defendant at his trial knew that this witness was the only eye witness besides the deceased to the homicide. The witness, as stated, was present at the trial, but for reasons satisfactory to himself, or his counsel, it was decided not to introduce him, notwithstanding the fact that the State had omitted to introduce the witness. As a reason now urged for not introducing this witness is the statement of counsel that he interviewed him before the trial and 'the witness informed him that he did not care to talk about the case in advance but would, when introduced, "swear the truth." This, instead of deterring counsel from introducing him, on the contrary offered the most substantial reason for doing so. It is too late after trial to predicate a motion for new trial upon newly discovered evidence based upon the ground had a witness been interrogated he would have sworn to a certain state of facts, but the ground of newly discovered evidence is meritorious only when the witness was unknown at the time of the trial. In other words, it is the newly discovered witness and not the evidence which the witness would have given had he been interrogated, that the law under certain conditions authorizes the grant of a new trial. See in this connection §§5480-1 Civil Code. A reading of the record will also disclose the fact that the newly discovered evidence is at most but cumulative and impeaching, which is not a ground for new trial. I have dealt with it purely from the legal standpoint and am of the opinion that the application for a respite upon the ground stated, and for the reason stated, is without merit. Yours very truly, Attorney-General. February 7th, 1908. GOVERNOR HOKE SMITH, DEAR SIR:-I beg to acknowledge reference to this office of a letter written by Mr. Wm. H. Beck, attorney at law, to you relative to his filing suit in behalf of his client, the Gresham Manufacturing Company against the Sixth District Agricultural School. The substance of Mr. Beck's letter is that he represents the Gresham Manufacturing Company, the contractors who built the school buildings in pursuance of a contract made between himself and the trustees of the Industrial and Agricultural School for the Sixth Congressional District, and that there is now due him as such contractor a balance of $17,317.71. Mr. Beck desires in behalf of his client to foreclose his lien for this amount, but before undertaking to do so he thinks it necessary "to secure the consent of the proper authorities," and he asks that you as Governor "give your consent for the Gresham Mfg. Co. to begin and prosecute foreclosure proceedings." Your inquiry is, as I understand the reference, may you as Governor of Georgia consent for him to institute this suit against the State? I will not discuss the question as to whether this is the State's property. I understand the policy of the State as expressed in the Act establishing these schools, that they may become the property of the State under certain conditions. I do not understand, however, that the State has obligated itself to accept these schools where to do so is to accept incumbrances in the way of debts due thereon. Let that, however, be as it may, I do not think that you as Governor could consent to any suit being brought against the State.. The Governor is clothed with authority to preserve the property of the State and to that end may institute suits, or may make the State a party defendant in a suit which will effect her interests, but that is an entirely different proposition from his consenting that the State might be sued. I do not think under our Constitution that any authority short of the Legislature could authorize the institution of a suit against the State. DEAR SIR:-In reply to your inquiries this day submitted: first, as Treasurer whether you may lawfully pay the per diam and mileage out of the monies in the Treasury to the members of the General Assembly now convoked in extraordinary session, there having been no specific appropriation for such purposes; and second, may the General Assembly now legislate in the subject of their per diem and mileage, this object not having been included in the proclamation of the Governor convoking them in extraordinary session? I beg to advise: If your assumption in your first inquiry was true, viz., "there had been no specific appropriation for such purpose" clearly you could not pay them, for the Treasurer is not authorized to pay out any money in the Treasury unless previously there has been an appropriation made therefor. Article 3, section 7, paragraph 2 of the Constitution, (Code §5774). But the assumption in your inquiry is incorrect. There has been an appropriation made by law for the payment of the per diem and mileage |