SCHEDULE "L." OFFICIAL OPINIONS OF THE ATTORNEY GENERAL. PRIMARY ELECTION LAW. Statement relative to the operation of the primary election law, Act 4, P. A. Ex. Sess. 1907. July, 1908. A number of opinions have recently been rendered in the Attorney General's Department which are of vital interest throughout the State, relative to the operation of the primary election law. In many instances a county convention has been held and delegates to the various district conventions and also delegates to the State convention to nominate candidates for State offices, have been selected. The Attorney General holds that such county conventions are premature and that the selection of district or State delegates thereat is absolutely void. The law provides that the State Central Committee of each political party shall fix the date of the county convention, which shall be within fifteen days after the September primary. This is mandatory, regardless of whether or not any political party in a county is operating under the primary system. Delegates to district conventions, and to a State convention to be called for the purpose of selecting candidates for State offices, must be selected at the county convention, which can not be held until subsequent to the September primary. In those instances in which delegates to district conventions have been selected at county conventions heretofore held, the Attorney General holds that the action was irregular and that the delegates must be selected at the county convention which will be held after the September primary. The action of the Legislature in the division of the senatorial districts has presented a peculiar question. The question is-who has the right to call a senatorial district convention in those districts which have been changed by legislative act? The question was presented from the ninth senatorial district, and will undoubtedly arise in every senatorial district which has been changed. The Attorney General holds that "If there are any members of the old senatorial district committee now residing within the new district, undoubtedly such members would have authority to act. That, regardless of whether there are at present any members of the old district committee in the new district, it might be wiser, owing to the fact that there is a new county constituting a portion of the district, for such members to meet with the county committee of the county not represented. If, however, there are no members of the old district committee now residing in the new district, or if there are such members but they refuse to act, it is suggested that the chairmen of the county committees or the county committee in each county, meet and decide upon a date and place for the convention to be called." A number of nomination petitions have been presented in which, the name of the township or city in which the petition is to be circulated has been omitted. The Attorney General holds, that the blank form of nomination petitions set forth in Section 30 of the general primary election act, requiring that the township or city, as well as the county, in which the enrolled voters who sign same reside, shall appear, is mandatory. He also holds that a nomination petition circulated in, and signed by, enrolled voters in one township or city can not be circulated in any other township or city. A peculiar situation prevails in Muskegon county. This is one of the counties expressly exempted from the operation of the general primary election law. The latter act provides that, in those counties in which any political party has decided, under Act No. 181 of the Public Acts of 1905 or the present general primary election act, to select candidates for county offices by a direct nominating system, that delegates to the county convention shall also be selected by such political party by a direct nominating system. Provision is made for printing upon the official primary election ballot as many blank lines as there are delegates to be elected. The Attorney General holds that the requirement that blank lines upon which may be written the names of delegates to the county convention can only be printed upon the official primary election ballots prepared under authority of the general primary election law in those counties in which a political party will select its candidates for county offices under the provisions of the general primary election Since candidates for county offices in Muskegon county can not be selected under the provisions of the general primary election act, delegates to the Muskegon county convention can only be selected by caucus or convention system, unless there is some provision in the local primary election act authorizing the selection of such delegates by a direct voting system. The same situation undoubtedly prevails act. in the counties of Wayne, Kent and Alpena. BANKING LAW. The statute does not authorize assessment of stockholders to make good an impairment of capital. July 29, 1908. Hon. Henry M. Zimmermann, Commissioner of Banking, "Capitol," Lansing. Dear Sir-We have carefully examined the letter of Cashier of the Savings Bank, of date July 18, 1905, together with the enclosures accompanying same. Section 42 of the General Banking Law, being section 6131 of the Compiled Laws of 1897, gives the Commissioner of Banking authority when he finds the capital of any bank is impaired or reduced below the amount required by law, to require such bank to make good the deficiency within ninety days after a written requisition is made, and in case the impairment is not made good it becomes his duty, with the concurrence of the Attorney General, to institute proceedings for the ap pointment of a Receiver to wind up the affairs of the bank. The law does not prescribe the method by which this impairment is to be made good. It makes no provision for an assessment upon the stockholders of the bank, nor is there any authority under the statutes of this state for the stockholders or directors to make such an assessment. There being no statutory authority for making the assessment, it follows that an assessment made by the stockholders or directors could not be enforced against dissenting shareholders. The only method of making an assessment against the stockholders of a bank is under section 46 of the General Banking Law, section 6135 of the Compiled Laws of 1897. This assessment can only be made when the bank is in process of liquidation. It is our view of this statute that it contemplates a voluntary contribution on the part of the shareholders in order to prevent the affairs of the bank being liquidated by order of the Commissioner, and leaves it open to the bank to make good the deficiency in any manner that seems to it feasible. The only alternative in case of the failure of the bank to make good the deficiency is for the Commissioner to proceed as directed by the statute. Very respectfully yours, JNO. E. BIRD, BANKING LAW. Foreign banks have no right to engage in business in Michigan or to establish an agency or representative in this state for the transaction of business. July 29, 1908. Hon. Henry M. Zimmermann, Commissioner of Banking, "Capitol," Lansing: Dear Sir-We are in receipt of yours of the 3d instant in which you enclose a letter from Reginald F. Fennell, under date of June 20, 1908, in which he submits the following inquiry: "Is there any license necessary or other legal form required to be gone through with for banks doing business outside of the State of Michigan, to establish an agency or representative in this State? In the event of there being any restriction, kindly advise to what extent." In reply to this inquiry will say that the Legislature has by statute prescribed strict conditions to be complied with by corporations desiring to engage in the business of banking, or in loaning and investing money. There is no statutory provision which permits foreign corporations to come into this State for the purpose of engaging in that kind of busi ness. The fact that the Legislature has seen fit to lay down these conditions for domestic corporations desiring to engage in such business and to place them under the supervision of the state banking department indicates clearly an intention on the part of the Legislature to prohibit foreign corporations from engaging in such business. In this connection we desire to call your attention to the case of New York Mortgage Co. v. Sec. of State, 150 Mich. 197, 202, which was a mandamus proceeding against the Secretary of State to compel the issuance of a license to do business in this State to a corporation desiring to engage in the business of making "loans secured by mortgages on real estate, to sell such mortgages and bonds of this company secured by mortgages on real estate, but said bonds are not to be sold on the installment plan." In response to the contention of the relator in that case that it should be admitted to do business under our foreign corporation law, the court said: "In other words such construction would operate as to such foreign corporations as a repeal of all the beneficial and protective provisions of Act No. 205, Public Acts of 1877. To hold that such was the legislative intent would be contrary to every suggestion that arises to the mind upon the consideration of the proposition. .Our construction of the act is that banking corporations and those corporations which are within the contemplation of our banking laws are not within the provisions of the act authorizing foreign corporations to transact business in this state." In view of the above, we are of the opinion that foreign banks have no right to engage in business in this State, or to establish an agency or representative in this State for the transaction of business. Very respectfully yours, JNO. E. BIRD, Attorney General. OFFICES, COMPATIBILITY OF. County surveyor and county drain commissioner, incompatible offices. Mr. George C. Wheaton, Marshall, Michigan: July 29, 1908. Dear Sir-Your letter of the twenty-first instant duly received, in which you ask if a person elected to the office of County Surveyor can also hold the office of County Drain Commissioner. In reply thereto would say, this Department has held these two offices to be incompatible, and therefore could not be held by one and the same person covering the same period of time. There has been no judicial determination, however, of the question. The matter could only be tested in a proper proceeding in a court of competent jurisdiction. Respectfully yours, CONSTITUTION, TAXATION. FINES IN CITIES. The "uniformity clause" relative to taxation would not be violated by the adoption of the 1908 constitution (Art. X, Sec. 4) and would not affect our present inheritance tax law or prevent the enactment of a graded income tax law. The addition of "cities" in Art. XI, Sec. 14, will operate to require all "fines" to be paid into the county treasury. Mr. James W. Helme, City Attorney, Adrian, Mich. : July 29, 1908. Dear Sir-Your communication of recent date, relative to certain changes which have been made in the proposed new Constitution, is received. You refer to the language used in Article X, Section 4, and question whether the adoption of same would render inoperative our present inheritance tax law and prevent the passage of a graded income tax law, on the ground, that there would be a violation of the uniformity clause in taxation. It is doubtful if the adoption of the proposed new Constitution would bring about any such results as those to which you refer. It is not absolutely necessary to have exact uniformity among taxpayers of different classes, if equality is maintained within the classes. In Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, the court considered an inheritance tax law which it was claimed contravened the provisions of the federal constitution. The Court, in part, said: "There are four classes created, and manifestly there is equality between the members of each class. Inequality is only found by comparing the members of one class with those of another. If * there is any unsoundness it must be in the classification. The members of each class are treated alike, that is to say, all who inherit ten thousand dollars are treated alike-and all who inherit any other sum are treated alike. There is equality therefore within the classes. * * It only requires that the law imposing it shall operate on all alike under the same circumstances." (299, 300.) See also: Orr v. Gilman, 183 U. S. 281; Knowlton v. Moore, 178 U. S. 41; Plummer v. Coler, 178 U. S. 115; U. S. v. Perkins, 163 U. S. 625. The accepted rule of construction only requires that all within a class be treated alike, and does not attempt to require that separate and distinct classes be treated similarly. You also refer to Section 14, Article XI, of the proposed new Constitution, relative to education, and ask whether the addition of the word "cities" will operate to require the fines collected in cities to be turned into the library fund for the city, instead of being turned into the county treasury. It is understood that, under the present Constitution, fines assessed in cities for any breach of the penal laws, are paid into the county treasury for library purposes. (Wayne Co. v. City of Detroit, 17 Mich. The addition of the word "cities," in the proposed new Constitution |