Glustrom v. State

• Decision Date: 14 February 1950
• Docket Number: No. 16960,16960
• Citation: 58 S.E.2d 534,206 Ga. 734
• Parties: GLUSTROM v. STATE.
• Court: Georgia Supreme Court

Page 534

58 S.E.2d 534

206 Ga. 734

GLUSTROM v. STATE.

No. 16960.

Supreme Court of Georgia.

Feb. 14, 1950.

Rehearing Denied March 30, 1950.

Syllabus by the Court.

The accusation charging violation by the defendant of Rule 602 of the State Revenue Commissioner, promulgated pursuant to the 'Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors', Ga.Code Ann. § 58-1001 et seq. did not charge the defendant with the commission of a crime under the Constitution and laws of this State.

Johnny Glustrom was charged in the Criminal Court of Fulton County 'with the offense of misdemeanor, for that the said Johnny Glustrom in the county aforesaid on the 17th day of April, 1949, did transport distilled spirits in violation of regulation 602 of the Commissioner of Revenue of the State of Georgia.' Regulation 602 is set out in the accusation in full. In so far as material in the present case, the regulation provides: 'A wholesaler or a retailer shall transport distilled spirits only in a motor vehicle registered in his name with the Commissioner and bearing his name, all his license numbers under the Act, and the addresses of all his places thereof in prominent letters in the English language, and only between sun-up and sun-down on a week-day, and only if each such shipment is accompanied by an invoice or itemized list thereof showing in detail the number of cases, the size of containers, type, brand and price of the distilled spirits included in such shipment, and the point of origin and the point of destination thereof.'

It is alleged in the accusation that 'the said Johnny Glustrom, a licensed retail liquor dealer, being licensed to sell distilled spirits under a license issued by the Commissioner of Revenue of the State of Georgia pursuant to an Act known as the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors and the rules and regulations promulgated under the provisions of said Act, did transport 2 cases of whisky [containing 24 bottles of named brands of whisky]. Said distilled spirits were transported by Johnny Glustrom, a retailer, in a motor vehicle which was not registered in his name and with the Commissioner, and bearing his name, or his license number under the Act, and addresses of all his places of business were not painted prominently and displayed on at least two sides thereof in prominent letters of the English language, and said shipment was not accompanied by an invoice or itemized listing thereof showing in detail the number of cases, size of containers, type, brand and price of distilled spirits included in such shipment, and the point of origin, and the point of destination thereof, all are required by said regulation.'

The defendant demurred to the accusation on the ground that there is no valid law in the State making it a misdemeanor to violate Rule 602, promulgated by the State Revenue Commissioner. It is contended that the only statute purporting to make the violation of such rules a misdemeanor is section 20 of the act known as the 'Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors' Ga.L.1937-38, p. 103, 121, Code Ann.Supp. § 58-1069. It is insisted that, in so far as such act seeks to make a violation of the rules of the State Revenue Commissioner a misdemeanor, the act is unconstitutional and void, being an unlawful, unwarranted, and unconstitutional attempt on the part of the General Assembly to delegate to an administrative official authority to define a crime, in violation of the followig provisions of the Constitution of 1945: 'The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.' Art. 1, sec. 1, par. 23, Code Ann.Supp. § 2-123. 'The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives.' Art. 3, sec. 1, par. 1, Code Ann.Supp. § 2-1301. 'No person shall be deprived of life, liberty, or property, except by due process of law.' Art. 1, sec. 1, par. 3, Code Ann.Supp. § 2-193. The section is further attacked as being in conflict with the 14th Amendment to the Constitution of the United States. It is further contended that the section is unconstitutional, in that it fails to fix or establish any standard, or define any limits, within which the commissioner must act in promulgating rules.

The defendant's demurrer was overruled, and he was found guilty. He was sentenced to pay a fine of $500, including costs, and sentenced to serve twelve months on the public works, the sentence of service on the public works to be suspended on payment of the fine. His petition for certiorari to the Superior Court of Fulton County was sanctioned, and, upon hearing, was overruled. The exception is to that judgment.

O. J. Coogler, Jr., Atlanta, Newell Edenfield, Atlanta, for plaintiff in error.

John I. Kelley, Atlanta, Paul Webb, Sol. Gen., Atlanta, William Hall, Atlanta, for defendant in error.

HEAD, Justice.

The courts of this country, including the Supreme Court of the United States, have long recognized the right of an administrative agency of government to make rules and regulations to carry into effect a law already enacted. Georgia Railroad v. Smith, 70 Ga. 694; Southern Ry. Co. v. Melton, 133 Ga. 277, 282, 65 S.E. 665; Bohannon v. Duncan, 185 Ga. 840, 196 S.E. 897; Zuber v. Southern Ry. Co., 9 Ga.App. 539, 71 S.E. 937; U.S. v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563. The power to adopt rules and regulations differs from the power to enact a law. Georgia Railroad v. Smith, supra. The lawmaking power of this State is vested solely in the General Assembly. Constitution, art. 3, sec. 1, par. 1, Code Ann.Supp. § 2-1301.

In the adoption of the Constitution of 1945, the people of this State provided many safeguards against an abuse of the legislative power. Article 3 deals with the manner in which the General Assembly shall exercise its legislative powers. Sec. 4, par. 3 of this article, Code Ann.Supp. § 2-1603, provides for the time of meeting and adjournment of the General Assembly, and par. 4, Code Ann.Supp. § 2-1604, requires a majority of each house present to transact business. Sec. 7, par. 4, Code Ann.Supp. § 2-1904, requires each house to keep a journal of its proceedings and publish it immediately after adjournment. Par. 6 of the same section, § 2-1906, requires that the yeas and nays be recorded on any measure at the desire of one-fifth of the members present; and par. 7, § 2-1907, requires that every bill, before passage, be read three times, on separate days, in each house. Par. 8 of the same section, § 2-1908, prohibits the passage of any law that refers to more than one subject matter, or contains matter different from that expressed in the caption. Par. 13 of the same section, § 2-1913, provides that all acts shall be signed by the presiding officers of the House and Senate, and that no bill which has been rejected by either house shall be proposed again in the same session without the consent of two-thirds of the body by which it was rejected. Par. 14 of the same section, § 2-1914, provides that no bill shall become a law unless it shall receive a majority of the votes of the members of both houses, and that it shall in every instance so appear in the Journal. Par. 15 of the same section, § 2-1915, provides that no local or special bill shall be passed until after notice of intention to apply therefor shall have been published in the newspaper in which the sheriff's advertisements are published for the locality affected, once a week for three weeks, during a period of sixty days preceding its introduction. Par. 16, Code Ann.Supp. § 2-1916, provides that no law, or section of the Code, can be amended or repealed by mere reference to its title, or to the number of the section of the Code, but that the amending or repealing act must clearly and distinctly describe the law to be amended or repealed.

There are other provisions of the Constitution applicable to the enactment of a law, but the foregoing are sufficient to indicate the expressed will of the people of this State that the lawmaking power shall be exercised only within defined limits. The limitations imposed upon the lawmaking power of the General Assembly by the Constitution of 1945 do not constitute a departure from previous rules of government in this State. The Constitution of 1877, and all prior Constitutions of this State, imposed restrictions on the lawmaking power of the General Assembly.

In U.S. v. Grimaud, supra, the Supreme Court reversed the judgment of the lower court sustaining demurrers to an indictment based upon rules and regulations promulgated by the Secretary of Agriculture. In that case it was said that the Secretary of Agriculture could not make rules and regulations for any and every purpose, that the subjects which the Secretary could regulate, were defined, but, as to the rules and regulations involved, Congress had clearly indicated and authorized the rules.

In considering the power conferred by the General Assembly in the present instance to formulate rules, and the particular regulation which the defendant is charged with violating, we must apply the rule that all criminal statutes are to be strictly construed. In Hill v. State, 53 Ga. 125, 127, it was said: 'The rule that criminal statutes are to be construed strictly, is hoary with age, and has the uniform sanction of all courts.' In this case, the power to adopt rules and regulations, administrative in character and for the policing of a particular business authorized by law, should not be confused with the power to enact a criminal statute. A criminal law is in violation of justice, and by such wrongs the existence of the State is assailed. The violation of a policing regulation attacks only the administration...