Greer v. State
| Decision Date | 11 February 1975 |
| Docket Number | No. 29546,29546 |
| Citation | 212 S.E.2d 836,233 Ga. 667 |
| Parties | John W. GREER et al. v. STATE of Georgia et al. |
| Court | Georgia Supreme Court |
Charles E. Tidwell, Atlanta, for appellants.
Arthur K. Bolton, Atty. Gen., Timothy J. Sweeney, Asst. Atty, Gen., Atlanta, for appellees.
Syllabus Opinion by the Court
This is an appeal from a judgment that declared members of the Georgia General Assembly ineligible to serve on the governing body of the Word Congress Center Authority. The issue decided adversely to the appellants was whether there was a violation of separation of powers in the 'George L. Smith II World Congress Center Act,' Ga.L.1974, p. 174, which amended Ga.L.1972, p. 245.
The Act created the World Congress Center Authority, a public corporation to plan, construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate and manage the Georgia World Congress Center. The Act provided that the governing body of the Authority would consist of twenty members, six of whom would be members of the General Assembly. The question raised was whether the Act, because it placed legislative members on the governing body of the Authority, was unconstitutional as violative of Art. I, Sec. I Par. XXIII (Code Ann. § 2-123) of the Georgia Constitution, which states: '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.'
The judgment of the trial court declared that those provisions of the Act pertaining to the membership of legislators on the Authority were unconstitutional, that the remaining sections of the Act were severable and constitutional, and that a resolution adopted by the Authority on August 19, 1974, was valid. That resolution had ratified all previous actions of the Authority and was adopted by the Authority without the participation of the legislator-members.
1. Appellants contend that the provisions of the Act which permit legislators to participate as members of the Authority are not violative of the separation of powers provision in the Georgia Constitution. Appellants argue that the purpose of the separation of powers provision in the Constitution is to prevent any one of the three traditional branches of government from usurping the powers and functions of any other branch. They contend that the Authority is a special instrumentality of government outside of each of the three traditional branches of the government. They argue, therefore, that the Authority performs 'proprietary,' not 'governmental,' functions and that the constitutional balance between the separate branches of government can in no way be disturbed by permitting six members of the legislature to sit on the twenty-member governing board of the Authority.
Appellants rely on Sheffield v. State School Building Authority, 208 Ga. 575, 68 S.E.2d 590(1952). There, in the context of a bond validation proceeding, this court held that the Speaker of the House of Representatives of Georgia could sit as a member of the School Building Authority without offending the provision of the Georgia Constitution (Code Ann. § 2-1606) that prohibits a member of the General Assembly from holding any 'civil office' created during his term of service in the General Assembly. This court held that membership on the governing body of the School Building Authority was not a 'civil office' within the meaning of this constitutional provision. The 'pure' separation of powers issue was neither raised nor decided in Sheffield.
Conceding that the 'civil office' prohibition is a 'narrow' separation of powers proscription, it does not encompass the broader question, contained in the 'pure' proscription, of whether persons who participate as members of the governing board of the Authority are performing executive rather than legislative functions. The 'pure' constitutional proscription (Code Ann. § 2-123) bars a member of the legislative or judicial branch from exercising the functions of the executive branch.
It must be conceded that separation of powers is not a rigid principle. 'While the constitution declares that the three departments of government shall be separate and distinct, this separation is not and from the nature of things can not be total.' Mayor and Council of Americus v. Perry, 114 Ga. 871, 881, 40 S.E. 1004 (1902); Beall v. Beall, 8 Ga. 210 (1850). 'While the departments of government must be kept separate and distinct, it is impossible to draw a mathematical line by which every action can be exactly classified; and there are some matters which do not inherently and essentially appertain to one department of government rather than to another.' Southern Railway Company v. Melton, 133 Ga. 277, 65 S.E. 665 (1909).
The separation of powers principle is sufficiently flexible to permit practical arrangements in a complex government, and though it is not always easy to draw a line between executive functions and legislative functions, it is quite plain to us in this case that the functions performed by the World Congress Center Authority are primarily, if not exclusively executive.
As a general principle, it is the function of the executive to implement specific legislation enacted. The implementing function, down to the last detail, is assigned to the Authority by the legislation attacked in this case.
The question here is whether the legislature can constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality. Appellants' argument is that there is no constitutional defect in this arrangement. Carried to its logical extreme, this arrangement would permit...
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