*1 Gunter, J., who concurs in the judgment only. 22, Bennett,
E. Jr., Strickland, Kontz Dennis J. Dewey Hayes, District Strickland, Dean Attorney, Assistant District Attorney, Bolton, Arthur K. Attorney General, Atkinson, Kirby G. Attorney Assistant Staff General, for appellee.
31736, 31737. OSBORNE v. RIDGE VIEW al.;
ASSOCIATES et and vice versa. Justice. Presiding Undercofler, Osborne, an attorney, seeks to set aside two contracts limited purchasing partnership interests acreage raw for investment purposes which were executed in 1973. He alleges the sales were not properly under registered Georgia amended, Securities Act of as as it existed at the time transaction, of this and are voidable. He does fraud, allege mistake or misrepresentation. He relies solely upon a constitutional upon attack the language of Section 6 (j) rewritten the 1970 amendment to that (Ga. 718), p. that a certain alleging phrase had been the Act as amended was deleted 1970 without notice in the caption the 1970 amendment contrary Vlf, to Art. Pars. IV of the Constitution §§ of 1976 2-1312). 2-1304,
1. The language provided that no exemption could be granted "... where a commission or other remuneration paid connection such sale . . .” The trial court found that commissions were these transactions but this restriction had been removed by the 1970 amendment and the court awarded summary judgment to Osborne states the court erred failing to note the caption, deletion did Assembly language relating
General and, an ex- commissions under the facts of null and void. He cites emption granted was as con- trolling authority.
Appellees arguments citing refute these *2 Co., in v. R. & 104 Bkg. of this court Gilbert Ga. holdings 673) (30 412, (1898), 414 an line of cases SE earlier Abernathy is claimed the court completely overlooked. Gilbert was not on Though exactly point case, cited in the facts of this other authorities that how other treated the showing jurisdictions question here, so, raised and affirm. point By doing are on we we specifically Abernathy overrule in favor of that recently stated in Appeals the Court of Atlanta Metallic Casket (131 Service, 677, 680 Co. v. Truck 107 Ga. Mosby App. 590) (1963): SE2d "When a statute or of the Code to section be amended is recited in shape, the statute its amended and it is in express terms declared therein that when amended the old law shall way, read a certain declaration the General the last Assembly, being expression of its intention as be the law of to what shall State, controls ... it can be seen that absolutely we follow an line from authority dating unbroken of Gilbert in 1898 and one that accord with the Sutherland, Statutory American 1 Con majority. (3d 263, struction, 1943, 1962 50 AmJur Supp.); 1932 Ed. Statutes, § 276. The rule a common sense represents approach that just both and laudable.” find, also,
2. We
that the Act
not
does
contain matter
Jardine,
different from that expressed in the title.
v.
Cady
(193
869) (1937).
State,
dismissed. All except Justices who dissents.
Argued January 1977 1977. no. case Carr, Wadsworth, Tabb, Abney & C. Benjamin for Abney,
Schreeder, Flint, Flint, Wheeler & David H. Justice, dissenting. Hill,
The A majority bernathy overrule 113 Ga. 303) (1901). In Abernathy omission the "to read” portion the Act was an See oversight.
In the case before us the omission of the words question v£as deliberate. were They the Senate. Journal, Ga. Senate Reg. Sess. 1646-1647. pp. therefore agree with the words question were effect after the of the effective date 1970 amendment, I would p. 718. it necessary overrule in this case *3 is In Abernathy the distinguishable. legislature did not intend repeal words; the omitted here the legislature intended to repeal the omitted words. (and agree) that 1970 Act had the effect of the words no repealing "when commission or other remuneration for or in connection with such appear sale.” Those words pp. 557, appear do not Those words anywhere repealed them. in my Ill, view the 1970 violated Art. VII, Sec. 2-1916) (Art. § Par. XVI of the 1945 Constitution VII, Par. the 1976 Con- 2-1312) stitution; a ". . . Code Ann. which declared that Act, to be. . . repealing distinctly shall describe law repealed, as well alteration to be made.” Nowhere in the 1970 Act there any description of the alteration (deletion) to be made.
In my view, our requires Constitution a Act do more repealing simply than omit reference to repealed words.