*1 291 Staton v. on alibi is not error.” See also separately Ga. SE 174 719 (see us, personal identity the case before Division
1) and alibi are found virtually jury same defense. against identity. defendants as the defense of Hence alibi, separately omission of court instruct on without did request, not affect the outcome the case and was not error. All
Judgment the Justices concur. affirmed. January July 29, 1976 Decided 1976 8, Submitted
Rehearing July 20, denied Sexton, Bishop & J. Sexton, for Douglas appellants. Bryant Jackson, Huff, Attorney, District Dawson Attorney, Bolton, Assistant District Arthur K. Attorney General, Isaac Byrd, appellee.
31187. RICH v. STATE OF GEORGIA et al. Presiding Justice. Undercofler, (Ga. The Georgia Residential Finance Authority L. 1974, p. 1651; amended Ga. L. p. 99-36),
Ch. was established General order to private encourage investment in the building and rehabilitation of low income housing providing loans mortgage at low interest rates eligible low and moderate income borrowers. 99-3602. Pursuant mandate, the Authority to issue sought bonds, revenue and the District Attorney of Fulton County brought this bond validation proceeding. Code (o). The trial court sustained Act’s validity, appeal is being prosecuted intervenor, B. Lacy Rich, Jr., who raises numerous constitutional Act. affirm in challenges part We reverse part.
A. The Valid Act. Portions 1. In five, of error claims the Act is invalid because does not serve a legitimate
292 clear, promotion It is purpose. the state
safe, cognizable is a sanitary housing Housing See Williamson police power. (1938); see, Authority Augusta, Ga. Agency, Development Housing e. v. Tennessee g.: West (Tenn. Finance 1974); Housing Minnesota SW2d *2 298) (210 Minn. 155 NW2d Hatfield, v. 297 Agency v. (1973); Authority Depositors’ Housing Maine State (Me. 1971); Martin v. North Co., A2d 699 Trust 278 665) (175 SE2d Corp., Carolina 277 N. C. Housing (1970). "the
Further, the Act specifically in and stimulation of trade and commerce development the of this State is vital housing industry and welfare, lessens employment opportunities creates in both the home unemployment under-employment and an industry, and real estate and construction and to finance safe money with which adequate supply people accommodations sanitary dwelling people the health of the necessary is Georgia (b). is That State.” Code Constitution itself: legitimate is bolstered trade, commerce, industry "The development be a is declared to employment opportunities hereby vital of this public purpose people to the welfare of create Assembly may development State. The General ” Authorities . . promote purposes. further (a) (Code VII, VII, Par. V Art. Sec. 2-6005.1). Thus, Act is a valid exercise of we find that the to a police power by Assembly pursuant General legitimate public purpose.
Intervenor
that since the state
interposes,
may
loans,
up
not
make
it can not set
constitutionally
In
arguing,
what
it can not do.
so
do
(100
Quillian,
cites
v.
Similarly, there no merit to intervenor’s claim Tippins County v. Cobb Parking Authority, (100 893) (1951) v. Beazley County, SE2d DeKalb 740) (1953),1 Ga. 41 limit necessarily types SE2d ventures may which state These cases participate. involve the establishment authorities a political v. (Beazley subdivision state DeKalb County, supra), state for a political subdivision Cobb (Tippins County Parking Authority, supra), which are limited their undertakings the Constitution to certain purposes. Par. Constitution, VII, VII, enumerated V Daughtrey See (1970). Ga. 758 limitation same does not apply to the state itself. section This and these cases are thus inapposite. seven, intervenor contends Constitution, violates the limit
which purposes incur *3 (Const., debt VII, Ill, I; 2-5601), Art. § Sec. Par. Code Ann. (Const., and for the state its credit may pledge 2-5602). VII, Ill, II; Par. long It has been clear, however, that an an authority, being agent itself, but not the state state not restricted the by state’s debt in the limitation Constitution. McLucas 531) Bridge Bldg. Authority, 210 Ga. (1953). authority Nor does the debt of an agency the obligate state or credit of pledge the the state as required to be explicit made the on the face of authority the bonds it issues. Code Ann. Regents 99-3610. State v.
1In these cases, this court considered and found unconstitutional the a "undertaking” county to establish a truck and freight terminal (Beazley v. DeKalb County, supra), and an attempt legislature state authorize County a Cobb parking authority {Tippins County, Cobb supra). case, latter this court held the could not do indirectly for a what county Constitution forbids the county directly. to do Georgia, University System Ga. 210 of
of (1934). no merit. thus has This enumeration Additionally, claims ratify since, fifteen that the voters refused to up proposed set amendment constitutional Assembly, authority purpose, as the General for a similar people, representative contravene can now the that of designate promotion expression public argument ignores purpose. housing This process are the and the electoral fact the constitution Assembly. power only Since of the General checks on the power limitations on the find no constitutional we legislature housing promote families for low income people police power, again we must leave the under express through right to vote. their will their carefully
Having all of intervenor’s considered power relating enumerations Assembly promotion legislation, we hold that to enact housing for income low moderate housing to be a families and the stimulation of the market public purpose. valid is a 2. Intervenor’s first enumeration 87-8) §Ann.
contention that the Revenue Bond Law does not authorize of the bonds validation authority’s issue, because the wishes "undertaking” for which is not an allowable Bond Law. bonds be validated under Revenue Code 87-802. The
"[a]ll issued revenue bonds Chapter executed, and validated confirmed, shall be Law,... under, with, and in the Revenue Bond accordance Chapter.” except provided in this otherwise (1). (Emphasis supplied.) The manifest intent adopt only procedures legislature out set the the Revenue Bond Law was to n §§ 87-814 to limitations fact, In imposed itself "the law makes *4 powers Chapter not affect the shall any general, special, local law.” conferred other or § the conclude that Code Ann. 87-825. We therefore does not Finance Residential provisions in not violate the presenting of Bond Law the Revenue undertaking that law.
an allowable Intervenor, in error, his second enumeration of presents the whether the validation question petition of adequately complies with the the Revenue Law, Bond set requiring forth the petition amount of annual interest and when bonds are to be the. paid full. We 87-816. have reviewed the petition and exhibits and find this enumeration to be without merit. ample
There was of evidence favor the economic of feasibility soundness the bonds presented trial court. Since the burden is on intervenor come forward any with evidence affirmative support defenses interposed by him against petition by (Harrell setting state forth the validity of the bond issue2 (80 v. Town (1913)), 141 Ga. Whigham, of none, and the produced the trial did court not err in "sound, finding reasonable, the program feasible practical.” Mays See App. Ga. 223) (1965). SE2d this is a legislative subject matter to the most limited review courts. See Holcombe v. Georgia Confederation, Milk Producers We thus reject inter- venor’s enumeration four. third proposes error since Act provides the bonds issued "shall be (b))
obligations Authority,” (emphasis A supplied), the series revenue bonds are not authorized type bond Act, issue. It from the the author- authorized issue revenue bonds. Code Ann. ity 99-3609. We do find that these two sections conflict. nine, Enumerations ten and eleven eight, challenge composition membership and, authority, thus, action validity already taken by them on behalf of the The Act six for members: his stead the Governor Budget, of the Office of the State Planning Director 2The feasibility plan required economic is not to be shown petition.
87-816. *5 Investment Financing
Auditor, Director of the Development, Community Division, of the Commissioner Governor appointed members be public and two (a). with the Senate’s confirmation. of a eight separation raises Enumeration the state that since contends Intervenor powers question. arm of legislative paid by the auditor elected and is in the powers3 required government, separation as member of if he serves a be offended constitution will branch. executive a which is authority, part 2-123); Greer XXIII Const., I, I, Sec. Par. Art. State, for a state has provided The General Executive auditor in Title which deals with it is clear Code Ann. Ch. 40-18. Department. executive, rather than the duties outlined are there lawmaking power. in has nature for he no legislative, auditor, use the state who will monitor the That is by the executive branch elected money are scheduled operations Assembly and funds his Appropriation division of the legislative result, simply but is does not a different require among of checks and balances system reflection of powers separation "The government. three branches practical sufficiently permit flexible principle though arrangements complex government, executive easy a line between always not to draw functions, us quite plain it is functions and primarily, in this are performed... case the functions if exclusively, p. supra. executive.” Greer find intervenor’s We therefore no merit contentions this regard. find merit in intervenor’s
Similarly, we no for the enumerations nine and ten power shall judicial 3"The and executive legislative, person no distinct, forever remain separate time, one, same shall, at the duties discharging others, except of either of the exercise functions XXIII I, I, Par. provided.” herein authority, within, members of the residing one one outside "the Standard Metropolitan Statistical Areas State”; one, a representative homebuilding industry, lending the other a member of the mortgage industry, are invalid because terms vague. these are descriptions These are exact sufficiently allow Governor to make two valid when appointments nec- essary. say
We cannot that such of the term qualification "public members” renders it as contended contradictory by the intervenor. *6 The word "public” reference these appointed members is used distinguish them from the four "permanent” members, who are state officials. argues
Intervenor additionally that the use of the (SMSA)4 term Standard Metropolitan Statistical Area one-man, violates the one-vote giving principle-in disproportionate representation to those outside the SMSA’s where fewer Georgians live. He makes the same claim the regarding public two members to be chosen from the homebuilding industries, and mortgage lending that asserting these two are thus businesses over- represented.
It is clear from Sailors v. Board of of the Education 650) County Kent, 1549, 18 387 U. S. LE2d SC (1967), however, one-man, that the one-vote mandate of officials, the applies to elected is only Constitution where, here, clearly members of a inappropriate thus as authority administrative appointed. are Intervenor next by adopting contends SMSA representation, determine has delegated illegally power United States Office Department Management Commerce Ill, which defines Budget, SMSA’s. I, I Par. As we made Norman, Featherstone 170 Ga.
(1930), all a statute a or of another adopts part "[w]hen statute, local, domestic or foreign, specific and descriptive reference thereto, adoption takes
4An SMSA metropolitan area having a population 50,000 over persons. subsequent time. at that as exists the statute amendment or any part repeal adopted statute or adopting upon the statute.” no thereof has effect adopting (Emphasis supplied.) is true here. The same public appointing guideline members as a SMSA adopted legislature Authority, the SMSA description population 1975 1655 it existed statistical pp. 1651, L.Ga. the Act was amended. when (a)). Thus, guideline supra, find that such a Featherstone, donot we power. delegating legislative illegally defective interpreted, the Act manifests we hold that As so legislative intent, and a clear, definite statement of the Governor from which definition workable appoint members of public members and have held Since-we proper members auditor are Authority, and all actions tak- Residential Finance body valid en are as members of them eight, nine, ten Thus enumerations of error enforceable. and eleven refusing present grounds to validate this no bond issue. regulations of the That rules power not have invalid does
are because adopt enumeration of them is interventor’s twelfth "Authority Act, error. The *7 regulations necessary its for own rules and shall make government,” (Ga. § pp. 981; 975, Ann. Code 1974, L. (4) power... (b)), Authority to "The have 99-3605 shall bylaws organization and internal make and alter for its (25) things management, [and] and all . . to do . necessary carry purposes and out or convenient to Chapter,” powers granted given in this exercise the (a)). (Ga. § pp. 1974, 875, 983; Ann. L. Code "Authority addition, administrative shall establish guidelines eligible persons for as limitations pp. Ga. 1974, 975,983, as amended families...” Ga. L. L. thus make (c)). § pp. Act 1975, 1651, 1659 Ann. 99-3606 power amply establishes the regulations. rules void find the Act is do not that we power
illegally delegating legislative as to the
299 contended in enumeration thirteen. "Having purposes Act, declared of the and enacted provisions effect, carry same into Assembly could on the properly confer board of governing the authority powers complaint of which is made.” Williamson v. Housing Authority 673, 186 Ga. Augusta, (199 Melton, 681 SE Accord: Southern R. Co. v. (65 665) (1913); 133 Smith, Ga. 277 SE v.R. 70 (1883). Ga. 694
5. Intervenor’s
fourteenth
of error
asserts that
the 1974 and 1975 Acts are unconstitutional
for the
reason
the 1974 Act
refers more than one
(Ga.
subject
975, 987, 989;
matter
L.
pp.
Code
§§ 99-3607, 99-3608), and the 1975 Act
matter
contains
(Ga.
expressed
different from that
in its title
L.
pp.
(9)).
(e)
1651, 1659-60;
Ill,
XVII,
Par. XIII
We find
these contentions
to be without merit. This court has
held
always
every
detail of the Act need not be
expressed
caption
as the
long
provisions
are
germane
they
will not be
general purpose
Act
considered
subject
different
matter. Since the
caption
the 1974 Act specifically
making
mentions
loans and
purchasing mortgages
and since both of these
are in furtherance
expressed
purposes
Act,
statute
unconstitutional
referring
more than one
v.
subject
Hospital
matter. Undercofler
Forsyth
221
County,
Ga. 501
(1965);
Gainesville,
Hope Mayor
v.
&c.
246
Ga.
(1884). Similarly,
caption of the 1975 Act includes
expressed intent
"to repeal
laws” which is
conflicting
(e)(9) (Code
(e) (9)).
carried out in
Section
Ann. 99-3607
Therefore,
it can not be said
repealer
that no notice of this
is contained in
caption
Act,
contains matters not
included
the title. Williamson
Jardine,
Housing Authority
Augusta,
supra; Cady
869) (1937).
9 Ga.
6. Intervenor’s enumeration sixteen is a contention
Act,
99-3614,
Section
grants
tax exemption
bondholders,
to all
violates
Constitution
in not
the valid
of a tax
being
subject
*8
(Art. VII,
I,
exemption.
The
Sec.
Constitution
2-5404),
the "General
provides
IV;
Ann.
Code
Par.
public
taxation all
law, exempt from
Assembly may,
Authority
that the
already decided
We have
property;...”
and we
purpose,
a valid public
been
for
has
established
the state
that bonds issued
times
many
held
have
instrumentalities,
are
institutions
thus,
this
from taxation
exempted
properly
v. Brunswick Port
Sigman
provision.
constitutional
(1958); Williamson
Authority,
appropriate funds minimum it is below a depleted reserve fund whenever — §§ Ann. 99-3612. Intervenor amount. Code be authority would any appropriation objects Const., VII, Art. Sec. an invalid of tax funds under the use I II, long Par. As as public purpose, has been established for valid for the Assembly may appropriate money General authority. We, however, expenses administrative compelled appropriations are to a different result as for the money payment tax to be used such use agree bondholders. We with intervenor gratuity be as a donation or illegal constituting would VII, II I, Par. contra to the 2-5402). more special that "one or funds ” funds,’ 'capital
secure bonds ... to be known as reserve "(1) be any moneys appropriated shall established from and made available such fund,” from sales bonds proceeds as well money income and other (a). supplied.) sub- (Emphasis (c) reads, order fur- section "[i]n
section same capital of any ther such maintenance assure fund, annually appropriated reserve there be paid capital in a reserve deposit fund *9 sum, if any, necessary any such as shall be restore such to the minimum equal reserve fund to amount capital fund.”5 fund for such capital reserve requirement (c). It is also (Emphasis supplied.) this moneys any capital from section held "[a]ll solely payment reserve ... shall be used fund of principal capi- bonds secured such Authority of of mature, as the or purchase reserve same tal fund redemption such bonds Authority, payment of of of interest bonds the Authority on such or the payment of of any premium be redemption required to when such paid bonds are redeemed prior maturity.” Code Ann. (a). (Emphasis supplied.) time,
At the same Section 10 of the Act manifests "[b]onds and notes issued under provisions Chapter shall not be deemed constitute a debt of the State or a pledge of the faith or credit but such bonds and notes shall be payable from the solely for, funds hereinafter provided and the issuance of such bonds and notes shall not directly indirectly or obligate the State to levy or pledge any form of taxation whatever therefor or to make any appropriation for their payment, and all such bonds shall contain on recitals their covering face the- substantially foregoing provisions of this Provided, however, section: such as may be received State appropriations... funds from may be used ... the payment any obligations ” Authority... 99-3610. (Emphasis suppli- ed.)
Although these sections are permissive General Assembly, and thus not void because they bind (see future legislatures State Authority Ports Arnall, (1947); Maine State Housing Depositors’ A2d Co., Trust supra), 5This section requires the chairman of the authority to notify the Governor and others of the amounts necessary to maintain the minimum capital reserve by December so that the amount can be presented legislature with the annual budget, which the General Assembly may then grant or refuse. appropriations import inescapable state pay principal may be used to are made purchase the bonds and notes
interest, redeem or or to authority. hand, itself, the other also Since the Act on obligation any legal repudiates clearly of the state re- appropriations payments, garding the use interpreted only as a donation be for that can private gratuity by Therefore, bondholders. the state to 126 are 10 and in the Act Sections appropriations unconstitutional, null and void.7 pay not be used to the bondholders severability Next we must consider the ofthe invalid portions only of the Act. Not must we consider the question severability our decision that as a result of *10 pay appropriations not be used to note from the state could trial court held bondholders, but also because the or authority allowing provision to members the designate meetings authority deputy writing attend in to a (a)) place was, in their delegation legislative although an unconstitutional urges power,8 Act. Intervenor thus severable from the agree. that tlxe Act as a must fall. We do not whole argues first that 18 Intervenor Section of the 1974 severability Act, pp. clause, which contains the 1974, Ga. L. appear 975, 1001, does not also in the 1975 Act amending p. Act, 1975, the 1974 Ga. L. 1651. He severability maintains clause thus cannot affect the portions relating deputizing unconstitutional ofthe Act to appears members since this section pp. 1975, 1651, 1975 L. Act. Ga. (a)). Obviously, Residential Finance deficiency apply 6The same constitutional would to appropriations pay use of state note or bondholders general Section from reserve fund. Code Ann. § 99-3613. 7We, therefore, do reach enu intervenor’s by enacting meration legislation obligations state, seventeen that morally obligated has also itself to meet pay. on the bonds which the cannot ruling appealed by 8This was not Act, Act is the 1974 Act as amended the 1975 it, therefore, and severability contains an effective clause. There is merit no to intervenor’s contention. on severability perhaps law was most 591, expressed Bennett v. 154 Ga.
aptly Wheatley, 83) (1922): "It is now well-settled principle State, that, constitutional construction in this unless the is statute, main or one of its purpose provisions, unconstitutionality particular affected part, the whole If provision thereby act is not defeated. part valid, statute is in constitutional part invalid, unconstitutional and the objectionable portion that, the general so connected with scheme out, should it be stricken effect cannot be given intent, legislative statute, section, whole or portion fall; must but where an act whole, cannot be sustained as it in uphold courts will part, reasonably when certain that do so would correspond with the main intent which the sought legislature if, accomplish by enactment, after the unconstitutional stricken, part is accomplish there remains enough It is purpose.” court, this rule which we apply. must This furthermore, in considering severability, has always given great weight expression to effect pertinent See, statutes. e. g., Greer supra; Weeks, Fortson v. This Act, above, as stated contains such a clause.” "savings Ga. L. pp.
We do not find that removing either the section held *11 invalid the trial court mem- allowing to or the we appoint deputies, bers sections found unconstitutional would undermine the intent and overall scheme of this Act. We therefore hold these portions be from the Act that the Georgia severed and Residential Finance as a whole is void.
The bonds to be issued are valid and sought proper exercise of the Residential Finance Authority’s mandate from the General its Assembly pursuance of established with purposes, exceptions of the severable portions noted Division 7 above. All the in part. reversed part,
Judgment affirmed concur, Gunter, J., specially. concurs who except Justices July
Argued 9, 1976 Decided June July Rehearing denied A. Arnold, Arnold, P. Merle & Bryan, Gary Ramos Ramos, appellant. for O. Lauren Slaton, Attorney, R. District
Lewis Bolton, K. Arthur Buckland, Attorney, District Assistant & Troutman, Sanders, General, Lockerman Attorney Ashmore, Kaufman, appellees. Mark S. Justice, concurring specially. Gunter, I court, but disagree
I judgment concur in Auditor I the State think that majority with the the state legislative department a member of the a member of the government; and his service as powers principle. separation offends the elects of the government branch legislative 40-1801, the State I State Auditor. As read Code branch for an legislative Auditor is elected branch term, indefinite and election effectively Auditor another individual be State I find no then discharges serving. the State Auditor statutory authority discharge the Governor a State Auditor, merely power appoint has and the Governor in that office vacancy in case of a interim State Auditor Assembly of State pending the election § 40-1801. Auditor regular at next session. Committee of Appropriations Committee Senate Appropriations House and and require and to direct right "have the and Auditor make a examination into special books, records, accounts, audit all vouch- [sic] ers, warrants, records, bills and other papers of any management financial transaction commission, bureau institution, department, agency, 40-1806. at time.” Code office of the State to mean provisions statutory Because I read these a State discharge can employ General mean that I read Auditor, these and because the House and Senate Committees of Appropriation *12 directing Governor have with the equal power special with respect the State Auditor activities of I any office of and audits of examinations of the Auditor is a member the State conclude that than a member rather department government. executive department et al. WILLIAMS v. MATHIS. Jordan, Justice. appeal
This is an from the final trial court order of the wherein adopted the special finding master’s report appellee herein to be the fee of the land in simple owner dispute.
Appellee Mathis filed an action to title under the provisions of Code Ann. seq., et alleging title to certain lands in land lot 254 in the 10th land lying Crisp district of County, Georgia. Appellants Williams et al. filed an answer alleging ownership disputed land. The trial court submitted the matter to a special master the provisions 37-1413, of Code Ann. who after due notice to all parties concerned after a full hearing thereon, rendered findings facts and conclusions of law which placed fee title simple disputed lands the appellee Mathis. These findings of fact and conclusions of adopted law were by the trial court and its decree rendered accordingly.
The sole enumeration is that the trial court erred in adopting the special master’s report finding the appellee Mathis to be the owner of the disputed lands.
The documentary evidence adduced at the hearing before special master, consisting deeds the chain appellant title of the appellee, clearly au- thorized special master’s that "the record finding boundary plaintiff between and defendants is the common line of land lot no. 254 and Appellants land lot no. 255.” at said hearing introduced evidence which they contend showed possession adverse the disputed lands for more than years which also showed evidence