Department of Transp. v. Del-Cook Timber Co., Inc.

• Decision Date: 06 January 1982
• Docket Number: No. 38024,DEL-COOK,38024
• Citation: 248 Ga. 734,285 S.E.2d 913
• Parties: DEPARTMENT OF TRANSPORTATION v.TIMBER CO., INC., et al.
• Court: Georgia Supreme Court

Page 913

285 S.E.2d 913

248 Ga. 734

DEPARTMENT OF TRANSPORTATION v. DEL-COOK TIMBER CO., INC., et al.

No. 38024.

Supreme Court of Georgia.

Jan. 6, 1982.

Michael J. Bowers, Atty. Gen., Michael E. Hobbs, Asst. Atty. Gen., Atlanta, for Dept. of Transp.

M. Dale English, Adel, J. Reese Franklin, Nashville, Jesse G. Bowles, Bowles & Bowles, Cuthbert, for Del-Cook Timber Co., Inc., et al.

MARSHALL, Justice.

Del-Cook Timber Company, Inc., and Del-Cook Lumber Company, Inc. (referred to hereinafter as Del-Cook) filed a petition for declaratory judgment, naming as defendant the Georgia Department of Transportation (referred to hereinafter as DOT). In the petition, Del-Cook states that it hauls timber by tractor-trailer rig on the public roads of Georgia. It is further alleged that on various specified occasions Del-Cook has been issued overweight assessment citations by representatives of the DOT, because vehicles operated by it were carrying loads allegedly in excess of the maximum limit specified by law. Code Ann. §§ 95A-959--95A-961 (Ga.L.1973, pp. 947, 1096--1100; as amended); DOT Rules 672-3-.01--672-3-.03. Del-Cook argues that these Code sections and implementing DOT rules are unconstitutional in various respects. The trial judge agreed and entered an order so ruling. The DOT appeals.

1. Since 1927, there have been wheel-weight, axle-weight, and gross-weight requirements imposed on motor vehicles operated on the highways of this state. Code § 68-402 (Ga.L.1927, pp. 226, 239); Code Ann. § 68-405 (Ga.L.1941, pp. 449, 450; as amended, Ga.L.1972, pp. 356, 358). Violations of §§ 68-402 and 68-405 were punishable as misdemeanors under Code § 68-9908 (Ga.L.1927, pp. 226, 243). See Alexander v. State, 228 Ga. 179, 184 S.E.2d 450 (1971); Dennis v. State, 226 Ga. 341, 175 S.E.2d 17 (1970). However, these Code sections were repealed in 1973 by the Georgia Code of Public Transportation. Code Title 95A (Ga.L.1973, p. 947).

Insofar as is applicable to the issues presented in this case, Code Title 95A provides as follows: Under Code Ch. 95A-3, administration of the state highway system is entrusted to the DOT, and the DOT is delegated certain specific powers and duties under § 95A-302. Section 95A-303 states: "In addition to the powers specifically delegated to it in this Title, the department shall have the authority to perform all acts which are necessary, proper, or incidental to the efficient operation and development of the department and of the State Highway System and of other modes and systems of transportation, and the provisions of this Title shall be liberally construed to that end. Any power vested by law in the department, but not implemented by specific provisions for the exercise thereof, may be executed and carried out by the department in a reasonable manner, pursuant to such rules, regulations, and procedures as the department may adopt and subject to such limitations as may be provided by law."

Today, the wheel-weight, axle-weight, and gross-weight requirements are found in § 95A-959. Section 95A-959(a) (as amended, Ga.L.1978, pp. 1965, 1966) provides in part: "If the driver of any vehicle can comply with the requirements of this section by shifting the load and does so when requested by the proper authority, said driver shall not be held to be operating in violation of this section." In addition § 95A-959(b) contains certain exceptions to the weight limitations of § 95A-959(a), and § 95A-961 authorizes the DOT to issue permits to operate motor vehicles whose weight exceeds the maximum limit specified by law.

Under § 95A-960(a) (Ga.L.1973, pp. 947, 1098), "Any person who violates the load limitation provisions of section 95A-959 shall be conclusively presumed to have damaged the public roads, including bridges, of this State by reason of such overloading and shall recompense the State for such damage in accordance with the following schedule: For the first 1,000 pounds of excess weight, $.008 per pound; plus $0.15 per pound for the next 2,000 pounds of excess weight; plus $.03 per pound for the next 2,000 pounds of excess weight; plus $.04 per pound for the next 3,000 pounds of excess weight; plus $.05 per pound for all excess weight over 8,000 pounds."

Section 95A-960(a) (as amended, Ga.L.1978, pp. 1989, 1991) also provides: "Within 15 days after the issuance of the citation, the owner or operator of any offending vehicle shall pay the amount of the assessment to the Department or request an administrative determination of the amount and validity of the assessment. If an administrative hearing is requested, it shall be held in accordance with the Georgia Administrative Procedure Act (Title 3A), and the department's rules and regulations. Any person who has exhausted all administrative remedies available within the department and who is aggrieved by a final order of the department, is entitled to judicial review in accordance with the Georgia Administrative Procedure Act."

Likewise, DOT Rule 672-3-.03(1) requires the owner or operator of an offending vehicle to pay the assessment or request an administrative review within 15 days after issuance of the citation. Under DOT Rule 672-3-.03(2), the administrative hearing is conducted under the Administrative Procedure Act by a hearing officer appointed by the DOT. Under DOT Rule 672-3-.03(3), an aggrieved party may within 30 days of the hearing officer's determination submit in writing a request for Department review.

At the time the administrative hearings and trial of this case were conducted, DOT Rule 672-3-.03(2) further provided: "Should the designated hearing officer find adversely to the aggrieved party, the said officer shall issue an order requiring the immediate payment of any monies owing under the assessment and citation thereon. Such payment shall be a condition precedent to the right to an appeal from the designated hearing officer's determination to a Department review. Such payment shall, however, be without prejudice, should the payor, pursuant to Ga.Laws 1974, p. 1422, appeal from the payment and its validity to a Department review."

However, effective April 9, 1981, Ga.L.1981, pp. 998, 999 added subsections (e) through (g) to § 95A-960; and § 95A-960(e)(2) now provides: "Whenever any person, firm, or corporation requests an administrative review, it shall be held in accordance with Title 3A, the 'Georgia Administrative Procedure Act'; and in the event that the commissioner or his designee, hearing officer, or others find in favor of the department, the person, firm, or corporation shall pay the assessment within 30 days after the issuance of a final decision by the agency, or if judicial review is had in accordance with the 'Georgia Administrative Procedure Act,' then within 30 days after final judicial review is terminated..."

2. The trial judge ruled that the previously-cited Code sections and the implementing DOT Rules are unconstitutional on the following grounds:

(1) Section 95A-303 is overly broad in its delegation of enforcement authority to the DOT;

(2) The General Assembly cannot delegate legislative functions to administrative boards;

(3) The requirement that monies be paid prior to a final determination of whether a violation has occurred is a denial of due process (4) Section 95A-960's conclusive presumption of damage to the roads caused by a violation of the load-limitation provisions of § 95A-959 cannot withstand a due process attack;

(5) Conduct of the administrative hearing by an officer of the DOT is a violation of due process, as is review of the hearing officer's decision by the commissioner;

(6) The classification of timber haulers in the same category as other freight haulers is irrational, discriminatory, and therefore a violation of due process for the following reasons: other freight haulers whose load is permissible in gross yet impermissible on a per-axle basis are given the option of shifting their load, whereas, as a practical matter, timber haulers do not have such an option;

(7) It is a violation of due process to require that the owner or operator of a vehicle who has been issued a citation initiate the administrative proceeding in order to contest the assessment;

(8) Failure to provide for a jury trial in these administrative hearings is a circumvention of the people's constitutional right to trial by jury (Code Ann. § 2-4401; Art. VI, Sec. XV, Par. I of the Ga. Constitution of 1976);

(9) The venue provisions of the Georgia Constitution (Code Ann. § 2-4306; Art. VI, Sec. XIV, Par. VI of the Ga. Constitution of 1976) are also infringed because of the possibility that a violator will be tried in a county other than the county of his or her residence.

For reasons which follow, we hold that the trial judge erred in rendering each of the foregoing rulings.

3. The enforcement authority granted to the DOT by § 95A-303 is neither overbroad nor an illegal delegation of legislative functions.

It is true that, "[t]he legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives." Code Ann. § 2-701 (Art. III, Sec. I, Par. I of the Ga. Constitution of 1976). However, it has long been recognized that the General Assembly is empowered to enact laws of general application and then delegate to administrative officers or agencies the authority to make rules and regulations necessary to effectuate such laws. See Scoggins v. Whitfield Finance Co., 242 Ga. 416, 249 S.E.2d 222 (1978); Moseley v. Garrett, 182 Ga. 810, 187 S.E. 20 (1936); Abbott v. Commissioners, 160 Ga. 657, 129 S.E. 38 (1925); Southern R. Co. v. Melton, 133 Ga. 277, 65 S.E. 665 (1909); Georgia R. v. Smith, 70 Ga. 694 (1883); Zuber v. Southern R. Co., 9 Ga.App. 539, 71 S.E. 937 (1911). See also Bentley v. Chastain, 242 Ga. 348, 249 S.E.2d 38 (1978).

(a) Thus, it was held in Georgia R. v. Smith, supra, that the General Assembly was authorized to establish a...