The Third Subdivision of sub-section 1ó of Section 424 of the Interstate Commerce Act, as amended, reads as follows: "All actions at law by carriers subject to this Act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues and not after, unless the carrier, after the expiration of such two years or within ninety days before such expiration, begins an action for recovery of charges in respect of the same service, in which case such period of two years shall be extended to and including ninety days from the time such action by the carrier is begun. In either case the cause of action in respect of a shipment of property shall, for the purpose of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after. A petition for the enforcement of an order for the payment of money shall be filed in the district court or State court within one year from the date of the order, and not after." The recourse of carriers for the collection of their tariff charges lies in the courts and not with the Interstate Commerce Commission, and it is to be noted that Congress has specifically provided that all actions by carriers (subject to the Act) for recovery of their charges or any part thereof, shall be begun within three years from the time the cause of action accrues and not after.

The question therefore arises whether this statute of limitation applies or whether the Michigan statute of limitation as to bringing of actions applies, in the event that the carrier seeks by an action at law to enforce its claim against the State of Michigan.

The general rule seems to be that a state statute limiting the bringing of actions is applicable only in those cases where there has been no legislation upon the subject by Congress, but where Congress has specifically provided that certain actions shall be brought within a certain time the Federal statute is applicable and the State statute must give way. 17 R. C. L. 694; Bauserman v. Blunt, 147 U. S. 647, 37 L. Ed. 316; Meeker v. LeHigh Valley R. R. Co., 236 U. S. 412, 59 L. Ed. 644. To the same effect see U. S. ex rel. Louisville v. Interstate Commerce Commission, 246 U. S. 636, 62 L. Ed. 914, wherein the court says: "We agree with this conclusion of the Commission: that the twoyear provision of the Act is not a mere statute of limitations but is jurisdictional-is a limit set to the power of the Commission as distinguished from a rule of law for the guidance of it in reaching its conclusion."

In that case the United States Supreme Court held that the statute prevented consideration by the Commission of a complaint when not filed in time. By analogous reasoning, this statute would be equally applicable to an action brought by carrier for undercharges where such action was not brought within the time limited.

In my opinion therefore the Federal Transportation Act of 1920, limiting the time to three years for the recovery of charges on shipments will apply. Very respectfully,

ANDREW B. DOUGHERTY, Attorney General.

BOARD COUNTY AUDITORS: Local Act Bay County construed. Board not authorized to hire auditors and fix salary. April 23, 1924.

Mr. C. L. Fox, County Clerk, Bay City, Michigan.

Dear Sir: We have your letter of the tenth instant, in which you state that the Prosecuting Attorney of Bay County, several weeks ago, commenced a proceeding under Act 196 of the Public Acts of 1917 as amended by Act 395 of the Public Acts of 1921, to investigate the office of Drain Commissioner of Bay County during the term of Robert McKenzie, former Drain Commissioner; that the prosecuting attorney recently appeared before the Board of County Auditors of Bay County and asked to be hired as auditor for the purpose of auditing the books of the Drain Commissioner, and you state that you understand that the Board have hired him and agreed to pay him six hundred dollars for the audit.

Your letter calls attention to Act 599 of the Local Acts of 1907, which is, "An act to provide for the creation of a Board of County Auditors for the County of Bay to prescribe the power and duties of its members and to provide for their compensation." You ask to be advised upon two questions: First, Has the Board of County Auditors the right to hire any person to audit the books of the County Drain Commissioner; and, Second, If so, is the prosecuting attorney of Bay County authorized to accept such employment.

Section 6 of the Local Act referred to defines the power of the Board. There are ten subdivisions of this Section 1, all of which state explicitly and plainly what powers the Board acquires under the Act. It will not be practical to attempt to quote all of their powers and duties, but a reference to a few of them is necessary.

Ist. They are to audit all claims which are chargeable against Bay County.

3rd. To examine the books and accounts of all county officers, and the Board may as often as it deems necessary require the accounts and vouchers of any county officer to be presented, and after the same shall have been examined and audited by said Board, it shall not be required that said account be again audited by the County Board of Supervisors for examination.

It will be apparent from the foregoing that it is the duty of the Board to audit books and accounts as well as claims chargeable against the County. No provision is made in this Act whereby the Board of County Auditors may hire any person to perform any of their duties. The Board of County Auditors are directed:

4th. "To recommend to the Board of Supervisors a number of clerks, assistants and other necessary help in the several county offices and also recommend compensation for such deputies, clerks, and assistants employed therein and in the circuit when not otherwise provided by law."

In the absence in this Local Act of any authority to the Board of County Auditors to hire employees and fix salaries, it is my opinion that this right remains with the Board of Supervisors by virtue of the statute prescribing their powers and duties, and in this connection attention is called to Section 2274 of the Compiled Laws of 1915, the 9th subdivision of which authorizes the Board

to prescribe and fix the salaries and compensation of all employees of their respective counties where not fixed by law, to adjust all claims against their respective counties, except in counties having a board of county auditors, etc. In this connection attention is directed to Act 58 of the Public Acts of 1921, which amends Section 2276 of the Compiled Laws of 1915 and adds a new section authorizing the Board of Supervisors to appoint certain representatives, agents and employees.

In my opinion therefore, your first question must be answered in the negative.

The answer to the first question in effect disposes of the second.

Very respectfully,

ANDREW B. DOUGHERTY, Attorney General.

BANKING LAW: Trust companies organized under Act 108 of the Public Acts of 1889 cannot amend articles of association.

April 24, 1924.

Hon. H. A. McPherson, State Banking Commissioner, Lansing, Michigan. Dear Sir: You have requested my opinion as to whether or not a trust company organized under Act 108 of the Public Acts of 1889 can change its name by amending its articles of association.

The act in question contains no express provision authorizing trust companies to amend their articles of association except for the purpose of increasing or decreasing their capital stock and altering and amending their seals. The corporation has no inherent power to amend its articles of association. Express authority to amend its articles must be conferred by the power creating it, viz: the State. The corporate name cannot be changed without amending the articles of association. See D. & M. R. R. Company v. Keisel, 43 Iowa, 39. As stated in Goodyear Rubber Company v. Goodyear Manufacturing Company, 21 Fed. 276-277, "It (the corporation) has neither the right nor the power to change the corporate name originally selected without recourse to such formal proceedings for the purpose as may be authorized by the laws under which it has been incorporated or by the consent of the authority from which its charter is derived." To the same effect see Sykes v. People, 132 Ill. 132.

It follows that under Act 108 of the Public Acts of 1889, a trust company is without authority to change its corporate name.

You direct my attention to Section 11334 of the Compiled Laws of 1915 which among other things authorizes corporations organized for profit to amend their articles of association where no provision for so doing is made in the statute under which they are incorporated, and ask whether this section applies to trust companies.

Trust companies are organized under a special act. They are granted powers and privileges which are withheld from corporations organized under the general laws of the State. Their activities are restricted and many safeguards placed around the conduct of this class of business by express statutory enactments which are not found in the statute relating to ordinary corporations, thus indicating the legislative intent that this class of corporation should exercise only such powers and privileges as were conferred upon it by the act of

incorporation and that general statutory provisions relating to corporations should not apply to this class of corporation.

You are therefore advised that in my opinion, Section 11334 of the Compiled Laws of 1915 does not apply to corporations organized under Act 108 of the Public Acts of 1889.

I am returning herewith, the copy of the proposed amendment to the articles of association submitted by you.

Very respectfully,

ANDREW B. DOUGHERTY, Attorney General.

TAX NOTES secured by deposit of collateral, are exempt from taxation upon payment of specific tax.

Second National Bank of Saginaw, Saginaw, Michigan.

April 24, 1924.

Gentlemen: You have requested my opinion on the following:

A corporation organized under the laws of this state has issued $500,000 of six and one-half per cent serial collateral gold notes. These notes are secured by the deposit of the capital stock of certain corporations of the par value of one million two hundred and forty thousand dollars with a trustee, pursuant to the terms of the deed of trust. You ask if these bonds can be made tax-exempt in this state by the payment of a specific tax.

Section I of Act 142 of the Public Acts of 1913 reads in part as follows: "The words 'secured debt' as used in this act shall include *** Third, any and all bonds or written or printed obligations forming part of a series of similar bonds, notes or obligations which are secured by a deposit of any valuable securities as collateral security for the payment of such notes or obligations under a deed of trust or collateral agreement held by a trustee."

Section 3 provides for the payment of a specific tax of one-half of one per cent of the face value of the secured debt whereupon the same is made exempt from further taxation under the general laws of the state.

The securities in question are notes whose payment is secured by the deposit of valuable securities, viz: one million two hundred and forty thousand dollars of capital stock with a trustee under a trust agreement. It therefore follows that these collateral gold notes can be exempted from general taxation by payment of a specific tax under Act 142 of the Public Acts of 1913.

Very respectfully,

ANDREW B. DOUGHERTY, Attorney General.

SCHOOLS: 1. Bonds issued within statutory limitation are valid, although vote authorized excessive issue. 2. Qualifications of voters on question of issuing bonds in fourth class city districts considered. April 25, 1924.

Mr. Arthur J. Butler, Rooms 7 and 8 Nisbett Block, Big Rapids, Michigan. Dear Sir: You have submitted to this department the following inquiries: I. Can the City of Big Rapids under Section 16 of Chapter 32, being Section 3277 of the Compiled Laws of 1915, bond for the full amount of $215,000.00, which amount is above the five per cent limitation, and sell the statutory

limit of five per cent this year and the balance next year so that the indebtedness for any one year shall not exceed the statutory amount?

2. Who can vote upon a question for bonding a school district in a city of fourth class? Are taxpayers alone qualified voters or are qualified voters who are not taxpayers entitled to vote upon this question?

It appears that the city of Big Rapids is a city of fourth class, and is about to submit to the voters the proposition of bonding the city for $215,000.00 for the purpose of erecting a new high school building.

The issuing of the bonds will be valid up to the statutory limit. Stockdale vs. Wayland School District, 47 Mich. 226. Kirby vs. City of Monroe, 214 Mich. 615. The time of the actual issue of municipal bonds is the time for determining whether the debt limit is exceeded (28 Cyc. 1584), and where the municipal indebtedness was reduced between the time of voting the bonds and the time of issuing them, the bonds so issued, were valid. ThompsonHouston Electric Co. vs. Newton, 42 Federal 723. Therefore, even though the amount of the bonds authorized added to existing indebtedness exceeds the limit of indebtedness at the time of such authorization, the actual issuing of such bonds will be valid if the limit of indebtedness at such time of issuing is not exceeded.

The statute under which you are proceeding reads in part as follows: "Should any greater sum be required in any one year for the purchase of grounds, the erection of school buildings, and for the payment of indebtedness incurred for such purposes than can be raised under the provisions of the foregoing sections, such sum, not exceeding five per cent of the taxable valuation of the property in the city for the preceding year, may be raised by tax or loan. ***" Section 3277 of the Compiled Laws of 1915.

If your proposition is to vote on an issue this year in excess of the five per cent limitation contained in the above quotation, and, if the proposition carries, to let that stand as an authorization for the issuing of the balance next year, we think that the statute cannot be construed as authorizing such a procedure. As above indicated, the issue this year would be valid up to the statutory limitation, but under this statute each year's indebtedness and the authorization thereof must stand by itself, and in our opinion the balance of the amount needed will have to be authorized next year.

You have referred to the opinion of the Hon. Grant Fellows, then Attorney General, dated November 26, 1913, in which he concluded that the qualifications for voting on the question for voting bonds in fourth class city school districts, must be determined by reference to the general election laws of the State rather than by reference to the general school laws. This opinion was based upon that part of Section 4 of Chapter 32 of the general fourth class city Act which at that time provided: "That the qualifications of voters at such election or the school district meetings shall be such as are or may hereafter be prescribed by the general election laws.”

Said Section 4 was amended by Act 10 of the Public Acts of 1917, so that the provision above quoted now provides: "That the qualifications of voters at such election or the school district meetings shall be such as are or may hereafter be prescribed by the general school law."