dissenting.
The Governor of Georgia exercises “chief executive powers,” and the Attorney General of this state serves “as the legal advisor of the executive department.” Art. V, Sec. II, Par. I and Art. V, Sec. Ill, Par. IV of the Ga. Const, of 1983. Ideally, these two constitutional officers will set aside any differences and disagreements, and work together in the performance of the duties that each individually owes to the citizens who elected them. In the unfortunate occurrence of an irreconcilable disagreement between them, however, only one can prevail. In this case, we are called upon to decide who has the ultimate authority to terminate civil litigation in which the state is a party. Resolution of that issue does not turn on policy considerations as to which of them should have that authority. Instead, we must determine in whom the power is vested under existing law. “The duties and powers of the attorney-general of this State are limited by the provisions of the constitution and statutes. . . .” Walker v. Ga. R. and Power Co., 146 Ga. 655, 656 (92 SE 57) (1917). In my opinion, the constitution and laws of Georgia clearly and unambiguously provide that Governor Perdue’s authority in this matter is paramount. Therefore, I believe that the trial court erred in denying mandamus to compel Attorney General Baker to comply with the Governor’s directive to end the appeal of the federal district court’s decision invalidating the original senate redistricting plan. Accordingly, I respectfully dissent from the majority’s affirmance of the trial court’s judgment, and in so doing I share the thoughts expressed by a Justice of this Court fifty-six years ago dissenting in a case which also materially affected the operation of the government of the State of Georgia:
I would much prefer, if it were possible to do so in a case of such great importance, to join in the majority opinion of my learned colleagues rather than dissent from the conclusions of law at which they have arrived. However, having resolved the questions as best I could, and having reached a decided conviction contrary to that expressed by the majority, with due modesty I trust as one of two dissenters, and with all deference to [the Justices in the] majority . . ., I feel it incumbent upon me to state for the record, as briefly as I can but as fully as is necessary, the reasons which have impelled me to arrive at a different legal conclusion. While it is true that the majority opinion is the judgment of the court and therefore becomes the law of the land, it is also true that in the development of American jurisprudence the dissenting *17opinion is believed to have ofttimes played a useful part.
Thompson v. Talmadge, 201 Ga. 867, 890-891 (41 SE2d 883) (1947) (Jenkins, C. J., dissenting). Giving full expression to my departure from the majority’s analysis is especially important where, as here, it characterizes its own holding as “limited” and based upon the “uniqueness” of the legal area into which it approves “legislative encroachment into the executive power of controlling litigation. . . .” Majority opinion, p. 15.
THE GEORGIA CONSTITUTION
The Georgia Constitution places the responsibility for ensuring that “the laws are faithfully executed” on the Governor, Art. V, Sec. II, Par. II of the Ga. Const, of 1983, and does not contain any comparable language conferring similar plenary authority on the Attorney General. Although he is also a constitutional officer and cannot be discharged by the Governor, the Attorney General is still subject to the same rules and regulations of the State Bar as is any other lawyer. Art. V, Sec. Ill, Par. II (b) of the Ga. Const, of 1983. In his professional capacity as a member of the bar, he represents Georgia “in all civil and criminal cases in any court when required by the Governor. . . .” (Emphasis supplied.) Art. V, Sec. Ill, Par. IV of the Ga. Const, of 1983. The Governor can exercise any power which “is expressly given or arises by necessary implication under the constitution or the statutes of the State . . . .” (Emphasis supplied.) Holder v. Anderson, 160 Ga. 433, hn. 2 (128 SE 181) (1925). If, in ensuring that the laws are faithfully executed, the Governor has the express constitutional authority to require that the Attorney General represent the state in a legal action, then the Governor must necessarily possess the concomitant implied power to direct the Attorney General to end the litigation. The power to require action implies the power to terminate it.
Certainly, nothing in our state constitution expressly authorizes the Attorney General to continue pursuing a lawsuit when the Governor directs him to cease doing so. Moreover, such unilateral authority would be completely inconsistent with a lawyer’s professional role. “The scope of an attorney’s authority when retained to prosecute or defend a pending case is determined by the terms of his contract of employment, and the instructions given by his client. . . .” (Emphasis supplied.) Dean v. Jackson, 219 Ga. 552 (134 SE2d 601) (1964). “An attorney of record is a party’s agent in the prosecution of a legal action.” Shepherd v. Carlton’s Nice Cars, 149 Ga. App. 749, 750 (256 SE2d 113) (1979). If the Attorney General is an agent when pursuing litigation on behalf of the state, then he obviously cannot *18also be the principal. The constitution does not provide that he serves as an independent counsel for Georgia, but as the legal advisor and advocate for the executive branch of state government of which the Governor is the undisputed head. Therefore, the Attorney General is the lawyer upon whom the executive branch relies to carry out the Governor’s constitutional obligation to execute this state’s laws faithfully.
As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.
Preamble (2) to the Rules of Professional Conduct of the State Bar of Georgia.
Thus, it is clear that the Attorney General’s constitutional role is to advise and to represent the executive branch, and not to defy the Governor’s order to discontinue pursuit of a lawsuit on behalf of the state.
Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to he served hy legal representation, within limits imposed by law and the lawyer’s professional obligations. (Emphasis supplied.)
Comment (1) to Rule 1.2 of the Rules of Professional Conduct of the State Bar of Georgia. The Governor is free to disregard the legal advice he receives and, if he does, his policy decision and instructions must control. Former Governor Barnes supported the Attorney General’s appeal of the decision of the federal district court. However, Governor Perdue now heads the executive branch of the government of the State of Georgia. He has the same constitutional authority to make policy decisions regarding litigation involving the state as did his predecessors in office. Likewise, the Attorney General does not have any more discretion to ignore the instruction to end the lawsuit than he had to disregard a direction by the then head of the executive branch to initiate the appeal.
The Attorney General’s lack of constitutional authority to defy the Governor’s directive is apparent not only from the unambiguous text of our Constitution, but also from the transcripts of the proceedings leading to its creation. Prior to the adoption of the Constitution of 1983, an effort was made on two occasions to include in it language that would expressly grant the Attorney General the power to proceed in civil cases without regard to the Governor’s wishes. See Select *19Comm, on Const. Rev., Subcomm. on the Judiciary, September 9, 1977 at 34-35; Additional Materials for Select Comm, on Const. Rev., Legis. Overview Comm., Aug. 7, 1981 at 60, 61 (10) (Aug. 3, 1981 memorandum from Melvin B. Hill, Jr.). However, both efforts failed. These unsuccessful attempts to change the draft of the proposed Constitution are critically important because, “[i]n determining the meaning of a provision of the Constitution, due consideration should be given to the intention of its framers.” Houlihan v. Saussy, 206 Ga. 1, 3 (55 SE2d 557) (1949). To accept the Attorney General’s position as to the unbridled scope of his authority requires, in effect, a judicial “amendment” of the Constitution so as to add a provision which was considered and rejected by those charged with drafting it. That result is precluded by this Court’s obligation “to construe and apply the Constitution as it is now written.” Buford v. Buford, 231 Ga. 9, 12 (200 SE2d 97) (1973), overruled on other grounds, Ledford v. Bowers, 248 Ga. 804, 807 (2) (d) (286 SE2d 293) (1982). As written, the Constitution does not provide that the Attorney General, in his capacity as Georgia’s attorney of record, is authorized to ignore the Governor’s directive to end a lawsuit. To the contrary, the Governor, as does any other client, makes the policy decision on whether or not to proceed with litigation, and the Attorney General, as does any other lawyer, has the tactical and strategic responsibility for implementing that decision.
GEORGIA STATUTES
The Attorney General is also authorized to “perform such other duties as shall be required by law.” Art. V, Sec. Ill, Par. IV of the Ga. Const, of 1983. However, acting in defiance of a direct order from the head of the executive branch of government for which he serves as the legal advisor is not a “duty.” Instead, it constitutes an exception to the lawyer’s traditional role as an agent for a party to litigation. It is a
well-settled legal principle recognized in various decisions of the courts of last resort in this country . . . that where the constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed on him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions.
Walker v. Ga. R. & Power Co., supra at 656. Thus, the power to ignore the Governor’s directive must derive “legitimately” from some duty imposed upon the Attorney General by statute.
Certainly, there is not any statute which expressly grants the *20Attorney General the power to disregard the Governor’s order to discontinue litigation to which the state is a party. To the contrary, the
Governor shall have the power to direct the Department of Law, through the Attorney General as head thereof, to institute and prosecute in the name of the state such matters, proceedings, and litigations as he shall deem to be in the best interest of the people of the state.
OCGA § 45-15-35. “Unless otherwise specially provided for, the Governor, in his discretion, shall provide for the defense of any action instituted against the state. . . .” OCGA § 45-12-26. Reading these enactments together, it is clear that the Governor has the discretionary authority to defend the state in whatever manner he deems appropriate, and that he can direct the Department of Law to represent the state in civil actions according to his determination of the best interest of the citizens of Georgia.
For his part, the Attorney General is generally authorized to “represent the state in all civil actions tried in any court . . . .” OCGA § 45-15-3 (6). In carrying out this statutory duty, the Attorney General, on his own motion, may be authorized to initiate and defend litigation in which the state is a party. The state constitution merely provides that the Attorney General “shall” represent the state when “required” to do so by the Governor. It does not expressly limit the Attorney General’s authority by requiring that he obtain the Governor’s approval prior to initiating or defending each and every action for or against the state. However, the dispositive issue is not whether the Attorney General can independently file or defend a lawsuit, but whether he can either refuse to institute an action or continue to litigate an issue after the Governor has instructed him to the contrary.
We are inclined to the opinion that the attorney-general has the power to institute suits necessary to the protection of the interests of the State; in case, for instance, where the State’s property is involved, or where public rights are jeopardized, without direction from the Governor; but when directed by the Governor, as in this case, to proceed, he has no discretion in the matter, but should obey the mandates of the chief executive. (Emphasis supplied.)
Trust Co. of Ga. v. State of Ga., 109 Ga. 736, 746-747 (1) (35 SE2d 323) (1900). Since that case was decided, the General Assembly has not expressly empowered the Attorney General to act independently of the Governor’s direction. Thus, the Attorney General’s power remains subject to the Governor’s discretion, and he does not have any legitimate statutory basis to defy the order to end the litigation.
*21ACT 444
The majority ultimately bases its holding upon Act 444, stating that, “[b]y appealing, the Attorney General was fulfilling his general duty as chief legal officer to execute state law and his specific duty to defend the reapportionment law as enacted by the General Assembly.” Majority opinion, p. 12. Even assuming that to be a correct statement, it has no bearing on the disposition of this case. No one questions the authority of the Attorney General to initiate the appeal. The crucial issue is whether the Attorney General can defy the Governor’s directive to withdraw the appeal.
The majority points to nothing in Act 444 which addresses the relative authority of the Governor and Attorney General with regard to the litigation involving the original senate redistricting plan. The statute simply suspended the provisions of the plan “pending a final determination of their enforceability under the federal Voting Rights Act of 1965, as amended.” (Emphasis supplied.) Ga. L. 2002, pp. 148, 149, § 1 (d). It neither specifies how the “final determination” will be made nor who decides what constitutes a “final determination.” Thus, there is not any language in Act 444 which expressly removes it from the general constitutional mandate that, as a law of this state, its faithful enforcement is a discretionary matter for the Governor, in his capacity as the head of the executive branch. “[T]he executive branch . . . enforce [s] the statutes passed by the General Assembly until such time as they are amended or [stricken] by the courts.” Adams v. Ga. Dept. of Corrections, 274 Ga. 461, 462 (553 SE2d 798) (2001). Because a federal district court had already held that the original senate redistricting plan violated the Voting Rights Act, a “final determination” of the enforceability of that plan would result from the Governor’s policy determination that the ruling was correct. Nothing requires the executive branch to exhaust every avenue of appellate review, and declining to pursue an appeal is a valid exercise of executive discretion. In fact, there have been numerous instances in which the federal courts struck down state statutes, and the executive branch, in the exercise of its discretion, elected to forgo an appeal. See Tillman v. Miller, 133 F3d 1402 (11th Cir. 1998); Statewide Detective Agency v. Miller, 115 F3d 904 (11th Cir. 1997); American Civil Liberties Union of Ga. v. Miller, 977 FSupp. 1228 (N.D. Ga. 1997); Southern States Landfill v. Georgia Dept. of Natural Resources, 801 FSupp. 725 (M.D. Ga. 1992); Fernandez v. State of Ga., 716 FSupp. 1475 (M.D. Ga. 1989). As exemplified by those cases, any question of the enforceability of the original reapportionment plan should have been resolved once the Governor determined to end the appeal from the federal district court decision. The authority for the Attorney General to defy the Governor which the majority reads *22into Act 444 is, in fact, contrary to the express terms of that statute. The law requires only a “final determination,” not an exhaustion of the appellate process.
SEPARATION OF POWERS
The majority acknowledges that an act of the General Assembly violates the constitutional doctrine of “separation of powers when it increases legislative powers at the expense of the executive branch” or “ ‘“prevent(s) the Executive Branch from accomplishing its constitutionally assigned functions,” ’ even if it does not increase legislative powers.” Majority opinion, p. 13. Furthermore, the majority concedes that the validity of its holding is completely dependent upon “whether Act 444 inappropriately intrudes upon Executive Branch powers and functions.” Majority opinion, p. 13. Admittedly it is not always easy to determine the line between executive and legislative functions. Greer v. State of Ga., 233 Ga. 667, 669 (1) (212 SE2d 836) (1975) . However, one area where the distinction should be absolutely clear is the control over litigation to which the state is a party. A lawsuit is the ultimate remedy to ensure compliance with the law, and our Constitution unequivocally imposes the responsibility for the faithful enforcement of the laws upon the Governor, and not upon the General Assembly. See Art. V, Sec. II, Par. II of the Ga. Const, of 1983; Adams v. Ga. Dept, of Corrections, supra at 462. See also Buckley v. Valeo, 424 U. S. 1, 138 (IV) (B) (3) (96 SC 612, 46 LE2d 659) (1976) . The Constitution contains no language purporting to limit the control of the executive branch over certain types of litigation. The General Assembly is certainly authorized to reapportion itself. Art. Ill, Sec. II, Par. II of the Ga. Const, of 1983. However, the Constitution does not provide that, in connection with litigation involving reapportionment, the legislative, rather than the executive branch, exercises the power of control. According to the majority, the executive branch “generally has the power and authority to control litigation as part of its power to execute the laws. . . .” (Emphasis supplied.) Majority opinion, p. 14. However, it does not point to anything showing that the authority of the executive branch in that regard is not exclusive or that it does not include control over litigation involving reapportionment.
Thus, the conclusion on page 15 of the majority opinion that “[t]he intrusion by the legislature into the executive branch function of control of litigation is justified by the limited nature of the encroachment - pursuit of one case - and by the subject matter of the litigation - legislative reapportionment,” is a complete fiction which is contrary to the unambiguous provisions of the Georgia Constitution. Because the constitutional grant of authority to the executive *23branch of control over litigation involving the state is unqualified, any legislative effort to encroach thereon, no matter how limited, would violate the principle of separation of powers. See Art. I, Sec. II, Par. Ill of the Ga. Const, of 1983. In Massenburg v. Commissioners of Bibb County, 96 Ga. 614, 617 (23 SE 998) (1895), this Court
announced] a fundamental principle of our State government under the Constitution. A departure from that high principle might well endanger the stability of the entire governmental structure. It declares a rule of law that denies any implied or inherent right or power in the legislative department to exercise any power that has not by the sovereign people, through that Constitution, been reposed in the legislative department of government.
Thompson v. Talmadge, supra at 887 (2). By holding that, notwithstanding the express provisions of the Constitution placing the unqualified responsibility for enforcement of the laws upon the executive branch, the General Assembly can intrude into the control of litigation involving reapportionment, the majority necessarily departs from that “high principle.” Sixty-Seventh Minnesota State Senate v. Beens, 406 U. S. 187 (92 SC 1477, 32 LE2d 1) (1972) is not authority for ignoring the clear mandate of our Constitution. All that case holds is that one house of a state legislature can intervene in federal litigation challenging an apportionment plan. The power to intervene in a federal action is in no way comparable to the constitutional power to control the ultimate course of the litigation. Under the Constitution of Georgia, that power is exercised only by the Governor in his capacity as the head of the executive branch of this state’s government.
As the majority does correctly note, one branch of government cannot do indirectly what it cannot do directly. However, the correct application of that principle in this case means that the General Assembly cannot impinge directly or indirectly on the authority of the executive branch to control litigation. Thompson v. Talmadge, supra at 887 (2). The Governor may not have the authority to decline to execute a law, but he certainly has the power to seek to avoid enforcement of a law that he believes encroaches on his constitutional powers. That is precisely what the Governor did when he brought this mandamus action to compel the Attorney General to act despite the provisions of any statute purporting to authorize his refusal to act. If, as the majority holds, Act 444 can be read as directing the Attorney General to maintain an appeal to the Supreme Court of the United States over the express objection of the Governor, then that statute would be an unconstitutional legislative *24encroachment on the executive’s power to enforce the laws. “If any department of government. . . acts beyond the bounds of its authority, such action is without jurisdiction, is unconstitutional, and is void.” Thompson v. Talmadge, supra at 874 (1). Under our constitution, the Governor, not the General Assembly, is vested with the authority to enforce the laws and, consequently, to direct the Attorney General as to whether to appeal an adverse judicial ruling or to allow that ruling to become final. Act 444 “inappropriately intrudes” into the executive branch’s control of litigation because, under our Constitution, no such intrusion would be authorized.
CONCLUSION
The majority seeks to minimize the effect of its holding by characterizing it as one which is narrowly premised upon the “uniqueness of legislative reapportionment.” Majority opinion, p. 15. As a dissenter, I am gratified that the majority recognizes that its decision has limited applicability and should not be cited in the future as general authority. In truth, however, broad and serious constitutional and political implications are inherent in today’s decision, notwithstanding the majority’s efforts to minimize its holding.
This case does not concern the power to reapportion. The sole issue is the power to control the course of litigation involving reapportionment. As to that controlling issue, the majority begins by positing generally that neither the Governor nor the Attorney General
has the ultimate authority to decide what is in the best interest of the people of the State in every lawsuit involving the State of Georgia. . . . [They have an] overlapping responsibility . . . [in] a system of checks and balances within the executive branch so that no single official has unrestrained power to decide what laws to enforce and when to enforce them.
Majority opinion, p. 6. The Constitution does not provide for any such intra-executive branch “system of checks and balances,” but confers the power to enforce the law exclusively upon the Governor, in his capacity as the head of that branch of government. Having ignored the clear language of the Constitution, the majority then promptly violates its own anomalous construction of that document by upholding the Attorney General’s decision to ignore the Governor’s directive. Obviously, the authority to pursue an appeal despite the objections of the head of the executive branch is the unrestrained power to decide what laws to enforce and when to enforce them. Thus, the majority’s notion of a system of checks and balances in the executive branch is completely illusory. Only one official of the executive *25branch can control the course of litigation and, according to the Constitution of this state, that official is the Governor.
Having conferred on the Attorney General a power which the Constitution vests exclusively in the Governor, the majority then purports to limit the exercise of that power to litigation involving reapportionment. However, there is nothing unique about reapportionment. It may be the most political of legislative functions, but it is still a legislative function. The relevant question is whether litigation involving reapportionment is an exception to the constitutional mandate placing enforcement of this state’s laws in the hands of the Governor.
No such exception appears in our Constitution. The General Assembly’s power to reapportion is no different than its power to enact “all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.” Art. Ill, Sec. VI, Par. I of the Ga. Const, of 1983. A reapportionment statute is just like any other law passed by the General Assembly. Litigation over the validity of a reapportionment act is a case just like any other civil action. Thus, the attempt to limit today’s decision based upon the “uniqueness” of reapportionment is necessarily unavailing. If, as the majority holds, the General Assembly can pass legislation directing the Attorney General to appeal this particular judicial ruling, then it is also authorized to enact future laws to control him in the conduct of other cases in which the state is a party. The power to determine whether to appeal or to allow a judgment to become “final” is the power to control the litigation. Because the majority’s attempt to limit its holding to reapportionment cases is baseless, that power has now passed from the executive to the legislative branch. The result is that the Attorney General will “win” this particular case, but the power of the office that he occupies, as well as the entire executive branch of government, is irrevocably diminished. Until today, the Attorney General, in his capacity as legal advisor to the executive branch, could be assured of direct and immediate input in the Governor’s decision whether to appeal a ruling in a case in which the state is a party. However, that is now a decision which can be controlled by a majority vote of the members of the General Assembly. After conferring, the Governor and Attorney General may be in complete agreement as to which policy the executive branch should follow, but the General Assembly retains the ultimate authority to override them and to order that an appeal be pursued or abandoned. On the other hand, when the Governor and the Attorney General do disagree, there is no longer any incentive for mutual consultation and possible compromise. The Attorney General can flatly refuse to consider implementing the Governor’s decision, thereby leaving the head *26of the executive branch completely without legal representation. Each intra-executive branch stalemate over policy will then escalate into a political contest, with each constitutional officer seeking the General Assembly’s enactment of a statute validating his or her position.
Decided September 4, 2003. Frank C. Jones, Cushing, Morris, Armbruster & Montgomery, Kirk M. McAlpin, Jr., Carlton M. Henson, Kelly R. Burke, District Attorney, for appellants. Jeffrey L. Milsteen, Michael E. Hobbs, Deputy Attorneys General, Rogers & Hardin, Richard H. Sinkfield, Robert B. Remar, Ashley R. Hurst, Julie K. Bracker, for appellees. David G. Oedel, John O. Cole, Anne S. Emanuel, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Jeffrey O. Bramlett, Randi E. Schnell, William H. Pryor, Jr., Attorney General of Alabama, Margaret H. Fleming, Assistant Attorney General of Alabama, Nathan A. Forrester, Solicitor-General of Alabama, amici curiae.The fundamental fallacy in the majority’s analysis is that it purports to rest on legislation, no matter how narrowly drawn. The Georgia Constitution provides that the General Assembly enacts our laws, whereas the Governor enforces them and the Attorney General serves as his legal advisor. The principle of separation of powers is “essential to the very foundation of our system of government” and must “be strictly enforced.” McCutcheon v. Smith, 199 Ga. 685, 690-691 (2) (35 SE2d 144) (1945). A decision to terminate the appeal in the voting rights case may or may not have been wise policy. However, our constitution clearly confers the authority to make such policy determinations on the Governor, and the duty to implement that determination on the Attorney General. For the benefit of all of the citizens of Georgia, conflicts between the branches of government and disagreements between the elected constitutional officers of the executive are to be avoided if at all possible. Far from the narrow holding portrayed by the majority, however, I submit that today’s opinion sows the seeds of a constitutional and political crisis which could and should be avoided simply by this Court following its own mandate to interpret the Georgia Constitution as it is written.
I am authorized to state that Justice Hines joins in this dissent.