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Official Opinion 96-11

Official Opinion 96-11

June 20, 1996
To: 

Executive Director
Georgia Superior Court Clerks' Cooperative Authority

Re: 

The Georgia Superior Court Clerks' Cooperative Authority may not assume responsibilities from the Secretary of State pertaining to maintaining records of commissioned notaries public.

This is in response to your question concerning the above-referenced matter. You have asked whether the Georgia Superior Court Clerks' Cooperative Authority ("Clerks' Authority") may contract to take over the duties of the Secretary of State to maintain records of commissioned notaries public or whether specific legislation would be necessary. For the reasons set forth above, the Clerks' Authority would not be authorized to assume such responsibilities without specific enabling legislation.

The General Assembly has given the Secretary of State specific responsibilities regarding records of commissioned notaries public. In O.C.G.A. § 45-17-4, the Secretary of State is directed to "keep a record in his office showing the names of the notaries public appointed with their addresses, signatures, ages, sex, and the terms for which their commissions run." Additionally, at various places throughout the Code, the Secretary of State is required to receive or send forth information regarding the status of individual notaries. O.C.G.A. §§ 45-17-13, -15, -17, -19.

It is highly questionable whether the Secretary of State, in the absence of specific legislative authority to do so, may delegate to another state entity the responsibilities specifically assigned to him by law. See Levine v. Perry, 204 Ga. 323 (1948). However, it is clear that the Clerks' Authority is not authorized to accept such responsibilities.

The authority of the Clerks' Authority is limited to the sum of those express powers plus such powers as are necessarily implied from those expressly conferred. Bentley v. State Bd. of Medical Examiners, 152 Ga. 836, 838 (1922). The enabling legislation for the Clerks' Authority does not expressly authorize it to assume the responsibilities for maintaining records pertaining to notaries public. While it may be possible to infer such authority based upon the language of O.C.G.A. § 15-6-94(a)(3),{1} an implication of this nature would not be necessary in light of the fact that the General Assembly has already vested such responsibilities upon the Secretary of State. See 1982 Op. Att'y Gen. 82-99.

Based upon the foregoing, it is my official opinion that specific legislation amending both the statutes pertaining to the Secretary of State and the Clerks' Authority would be necessary in order to authorize the Clerks' Authority to assume responsibilities from the Secretary of State for maintaining records of commissioned notaries public.

Prepared by:

HAROLD D. MELTON
Assistant Attorney General


{1} Official Code of Georgia Annotated § 15-6-94(a)(3) provides:

The purpose of the authority shall be to provide a cooperative for the development, acquisition, and distribution of record management systems, information, services, supplies, and materials for superior court clerks of the state, on such terms and conditions as may be determined to be in the best interest of the operation of the office of the clerk of superior court, local government, and the state . . . .