American Booksellers Ass'n v. Webb

• Decision Date: 22 May 1985
• Docket Number: No. 41739,41739
• Parties: AMERICAN BOOKSELLERS ASSOC., et al. v. WEBB, et al.
• Court: Georgia Supreme Court

Page 495

329 S.E.2d 495

254 Ga. 399

AMERICAN BOOKSELLERS ASSOC., et al. v. WEBB, et al.

No. 41739.

Supreme Court of Georgia.

May 22, 1985.

William N. Withrow, Jr., J. Kirk Quillian, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Michael A. Bamberger, Jeffery A. Mitchell, Finley, Kumble, Wagner, Heine, Underberg & Casey, New York City, for American Booksellers Ass'n, Inc., et al.

Michael J. Bowers, Atty. Gen., George M. Weaver, Sp. Asst. Atty. Gen., Sibley & Weaver, Susan B. Forsling, Atlanta, Jerry L. Gentry, Joseph C. Parker Marietta, Sam F. Little, Terry L. Miller, Dalton, George P. Dillard, Decatur, for James Webb et al.

CLARKE, Justice.

This case is before our Court on certified questions from the United States Court of Appeals for the Eleventh Circuit, and arose as a suit filed in the District Court for the Northern District of Georgia for declaratory and injunctive relief challenging the validity of an act, 1984 Ga.Laws 1495 (hereinafter the Act), amending OCGA § 16-12-102, et seq., on state and federal constitutional grounds. American Booksellers Association, Inc. v. Webb, 744 F.2d 784 (11th Cir.1984); American Booksellers Association, Inc. v. Webb, 590 F.Supp. 677 (N.D.Ga.1984). The section of the Act under attack relates to the sale, distribution and furnishing of materials deemed harmful to minors. The questions posed to this Court are as follows:

(1) Whether the combination of the three sections of Act 1319, 1984 Ga.Laws 1495, into a single legislative act violates the prohibition contained in Article III, Section V, Paragraph III, of the Georgia Constitution that "[n]o bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof? "

(2) How does the Georgia Supreme Court construe the provisions in Act 1319, 1984 Ga.Laws 1495, which have been challenged in this suit?

The declaratory and injunctive relief is being sought by bookselling, publishing and distributing associations, along with two bookstores and one author; the defendants are various law enforcement officials. The constitutional complaints are for the most part based upon alleged violations of the United States Constitution. However, one state constitutional ground was raised, that is that the Act violates Art. III, Sec. V, Par. III of the Georgia Constitution, the applicable portion being set forth in question number one.

The defendants in the district court made a motion for the court to abstain from deciding the federal constitutional questions in order to seek a resolution of issues of state law from the state court under the authority of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The plaintiffs then moved to withdraw their state constitutional claim; the district court declined to allow withdrawal and ruled in favor of abstention because a resolution of the state law issue could render the federal claims moot. 590 F.Supp. 677, 682-684. The district court, having ruled that abstention was proper on the state constitutional ground, held that defendants could also ask this Court to construe the Act in a manner which might eliminate some of the federal constitutional problems saying, "[i]f the Georgia courts decline or fail to provide a constitutional construction of the Act, then plaintiffs will be in no worse position than if they had not sought such a construction." 590 F.Supp. 677, 684. Pending final resolution of all matters, the district court granted partial interim relief by issuing a preliminary/interlocutory injunction against the enforcement of the display provisions set forth in OCGA § 16-12-103(e), 1984 Ga.L. 1495, 1501.

1. The Act in question is separated into three numbered sections. Sections one and two amend sections of Chapter Six of the Criminal Code, Title 16, which defines sexual offenses. Section one amends OCGA § 16-6-4 relating to child molestation; section two amends OCGA § 16-6-5 relating to enticing a child for indecent purposes. Section three amends OCGA § 16-12-102 through 104 relating to control of materials defined as harmful to minors. 1984 Ga.L. 1495. Chapter 12 of Title 16 defines offenses against public health and morals.

Plaintiffs contend that combining these three sections in one act violates the multiple subject matter prohibition, see Crews v. Cook, 220 Ga. 479, 139 S.E.2d 490 (1964), and that the subject matter of the amendment set forth in Section three is not ancillary to the other subject matter, see Wall v. Board of Elections of Chatham County, 242 Ga. 566, 250 S.E.2d 408 (1978).

The constitutional provision prevents the joining in one act of "incongruous" or "unrelated" subject matters, Whitley v. State, 134 Ga. 758, 776, 68 S.E. 716 (1910), and inhibits omnibus or log-rolling bills that combine matters "adverse in their nature, and having no necessary connection with the view of combining in their favor the advocates of all, and thus securing the passage of several measures no one of which could succeed upon its own merits." Central Railway Co. v. State, 104 Ga. 831, 846, 13 S.E. 531 (1898).

The fact that a bill amends different code sections does not offend the constitution. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945); neither does the "subject matter" described in the constitution mean that separate provisions may not be joined in one bill. Hines v. Etheridge, 173 Ga. 870, 162 S.E. 113 (1931). Further, in defining "subject matter," this court has said "it is to be given a broad and extended meaning so as to allow the legislature authority to include in one Act all matters having a logical or natural connection. To constitute plurality of subject matter, an Act must embrace two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any logical connection with or relation to each other." Crews v. Cook, supra 220 Ga. at 481, 139 S.E.2d 490. See also Bembry v. State, 250 Ga. 237, 297 S.E.2d 36 (1982).

An examination of the cases of this court over the last century reveals that the principles now found in Art. III, Sec. V, Par. III of the 1983 Georgia Constitution have...