Fortson v. Weeks

• Decision Date: 20 June 1974
• Docket Number: No. 28962,28962
• Citation: 208 S.E.2d 68,232 Ga. 472
• Parties: Ben W. FORTSON, Jr., Secretary of State, et al. v. Leonard H. WEEKS.
• Court: Georgia Supreme Court

Page 68

208 S.E.2d 68

232 Ga. 472

Ben W. FORTSON, Jr., Secretary of State, et al. v. Leonard H. WEEKS.

No. 28962.

Supreme Court of Georgia.

June 20, 1974.

Rehearing Denied July 9, 1974.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Andrew J. Owen, Jr., Don A. Langham, Asst. Attys. Gen., Atlanta, for appellants.

Heyman & Sizemore, Lamar W. Sizemore, Terry P. McKenna, Ralph G. McCallum, Jr., Robert A. Bartlett, Atlanta, for appellee.

Stanley M. Lefco, David R. Hendrick, Nathan M. Crystal, Robert S. Windholz, B. J. Powell, Gary N. Ackerman, Timothy S. Perry, Atlanta, amicus curiae.

Syllabus Opinion by the Court

PER CURIAM.

This appeal is from a judgment declaring the 'Campaign Financing Disclosure Act' (Ga.L.1974, p. 155) unconstitutional. We reverse. Parts of the Act are unconstitutional. However, the judiciary will not, and indeed can not, void an enactment of the General Assembly merely because it is defective in part. Constitutional principles dictate that such defective parts be excised and the remainder sustained provided the legislative scheme can be preserved. We have determined that is required here. The attacks upon the Act and our conclusions are set forth in the divisions which follow. As will appear in the opinion, the Act requires public disclosure of contributions and expenditures made in connection with campaigns for certain elective public offices.

1. It is asserted that the body of the Act contains matter not expressed in the title and therefore violates the Georgia Constitution which provides, 'No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof.' Code Ann. § 2-1908 (Const., Art. III, Sec. VII, Par. VIII). In this regard three attacks are made.

First, it is argued that the title of the Act limits it to 'certain State offices' whereas the body of the Act includes other offices, namely 'all county and municipal elected officials.' We agree. The title of the Act states, 'An Act to provide procedures for public disclosure of contributions and expenditures made in connection with campaigns for certain State offices . . .' The body of the Act states its policy and intent is, '. . . to protect the integrity of the democratic process and insure fair elections for the offices of Governor, Lieutenant Governor, Attorney General, Secretary of State, Comptroller General, Commissioner of Agriculture, State School Superintendent, Commissioner of Labor and Public Service Commission, and members of the Georgia House of Representatives and Georgia Senate, all county and municipal elected officials.' All county and municipal elected officials are not state officers. Truesdel v. Freeney, 186 Ga. 288, 292, 197 S.E. 783. Therefore, 'all county and municipal elected officials' not being included in the title to the Act, their inclusion in the body of the Act is unconstitutional and the Act can not be enforced as to candidates seeking such offices.

The fact that the title of the Act thereafter refers to later provisions of the Act as applying to candidates for 'certain offices' and concludes by stating 'and for other purposes' does not alter our conclusion. The purpose of the title is to place members of the General Assembly on notice generally as to the subject matter of the legislation. As stated in Prothro & Kendall v. Orr, 12 Ga. 36, 43, 'To prevent fraud and surprise, how important it is, that the members (of the General Assembly) should be notified at least by the Title of the Act, of the subject matter about which they are legislating; at any rate, that they should not be misled by the Title,' and, 'Had the Title been general-as for instance, an act in relation to the public officers or for the particular objects designated, and for other purposes-the construction would have been different. But here the Title is definite, and therefore, necessarily limited. And to permit other and totally different matter to be incorporated, would be to let in the very mischief intended to be prevented; and thus render the Constitution of none effect.' Id. p. 41. In our opinion a reasonably construction of the title requires a conclusion that the Act related only to 'certain state offices.'

Although the inclusion of 'all county and municipal elected officials' is unconstitutional, this does not render the entire act unconstitutional. As stated by Justice Lumpkin in Hancock v. State, 114 Ga. 439, 442, 40 S.E. 317, 318, 'It often happens that a portion of an act not covered by its title must be treated as unconstitutional, while the remainder of it, which is covered by the title is upheld. It would not be difficult to give instances of this kind ad nauseam. The rule applicable to such a question as the now before us was well stated by the present Chief Justice of this court in Elliott v. State, 91 Ga. 694, 696, 17 S.E. 1004, 1005. He said, 'When a statute cannot be sustained as a whole, the courts will uphold it in part, when it is reasonably certain that to do so will correspond with the main purpose which the legislature sought to accomplish by its enactment, if, after the objectionable part is stricken, enough remains to accomplish that purpose. But if the objectionable part is so connected with the general scope of the statute that, should it be stricken out, effect cannot be given to the legislative intent, the rest of the statute must fall with it. " As we view the Act its purpose is 'to protect the integrity of the democratic process and to insure fair elections.' The Act does not purport to include all elective offices and the fact that 'all county and municipal elected officials' must be deleted because not encompassed in the title does not destroy its main purpose or scheme. These are merely categories of elected officials. The scheme of the Act setting forth the requirements and providing the procedures 'to protect the integrity of the democratic process and to insure fair elections' has not been disturbed.

Next, it is argued that the title of the Act states, 'to provide for the investigation by the Attorney General of any apparent violations of this Act' whereas the body of the Act fails to mention the Attorney General. In our opinion this does not render the Act unconstitutional. It is mere surplusage. The Act gives the Attorney General no authority in addition to that which he may otherwise have by law. The scheme of the Act is not destroyed. The Act is penal with fine and imprisonment being specified for its violation. Such violations may be prosecuted by the appropriate prosecutorial officers of this state. The campaign financing disclosure reports are required to be filed with the Secretary of State and made available for public inspection. If violations of the Act come to the attention of appropriate prosecutorial officers, it is their duty to prosecute such violations. Furthermore, the fact that the title states the Attorney General was given authority to investigate apparent violations of the Act, in our opinion, could not have misled the members of the General Assembly to believe violations of the Act were not subject to prosecution as any other criminal violation. The title clearly provides, 'to provide for penalties for violations of this Act.' The penalties are fine and imprisonment which must be pursued by the appropriate officer in the appropriate criminal court of this state.

Finally, it is pointed out that the title of the Act states, 'to provide for the filing of campaign disclosure reports by certain candidates and by officers of certain campaign committees,' and, 'to provide for the promulgation of rules and regulations.' This is provided for in the body of the Act by designating who must file the reports, when they shall be filed, the content of the reports, and that they shall be filed with the Secretary of State who is directed to retain such reports for five years and make them available for public inspection. The Secretary of State is authorized to promulgate rules and regulations to carry out the Act There is no quarrel with these provisions.

However, the body of the Act establishes a 'State Campaign Ethics Commission.' It is invested with the duty and power to 'make rules as are necessary to administer this Act and to carry out its duties under this Act,' to 'receive and review documents filed with it . . .' to make such documents available to the public and appropriate prosecutorial officers, and to make an annual report to the General Assembly. It is argued that nowhere in the Act are candidates or other persons required to file documents with the 'Commission'; that these are directed to be filed with the Secretary of State and, consequently, there are no duties for the 'Commission' to perform. We agree. Nowhere in the Act does it appear that the 'Commission' has any administrative duties to perform or which would require it to promulgate rules. The administrative duties of receiving and filing the required campaign reports and making rules therefor are placed upon the Secretary of State. It appears the 'Commission' is given 'carte blanche' authority to adopt whatever rules it deems appropriate to carry out whatever duties it desires to assume. Such sweeping authority cannot be sustained under the provision of the title which states, 'to provide for the promulgation of rules and regulations.' In our opinion that portion of the title as well as the 'catchall' provision 'and for other purposes' is insufficient to place the members of the General Assembly on notice as to what we interpret as the 'Commission's' undefined and apparently unlimited authority. On the other hand, if the 'Commission's' duties and powers are strictly limited to the establishment of rules for administrative purpose it has no function because these administrative duties have been reposed in the Secretary of State with whom the reports are filed. Therefore, we hold that the...