Sundberg v. State, 29916
| Decision Date | 27 May 1975 |
| Docket Number | No. 29916,29916 |
| Parties | Richard Chason SUNDBERG v. The STATE. |
| Court | Georgia Supreme Court |
Nixon, Yow, Waller & Capers, John B. Long, Augusta, for appellant.
Richard E. Allen, Dist. Atty., Sam B. Sibley, Jr., Asst. Dist. Atty., Augusta, for appellee.
Syllabus Opinion by the Court
Richard Chason Sundberg was indicted in a two-count indictment for possession of marijuana (Count 1) and for the sale and distribution of Phencyclidine (PCP) (Count 2). A demurrer was filed to the second count of his indictment in which it was contended that Code Ann. § 79A-903(b)(4) violates Article 1, Section 1, Paragraph 23 (Code Ann. § 2-123) (separation of powers) and Article 3, Section 1, Paragraph 1 (Code Ann. § 2-1301) (delegation of legislative power).
The trial court overruled the defendant's demurrer and certified such judgment for immediate review.
The sole question presented by this appeal is whether the delegation of authority to the State Board of Pharmacy to define depressant and stimulant drugs violated the Constitution. If so, the demurrer should have been sustained; if not, it was properly overruled.
The provision of the Code attacked provides:
Phencyclidine hydrochloride was found to be a depressant or stimulant drug by the State Board of Pharmacy. See Rule 480-9.01(3). Rules of the Georgia State Board of Pharmacy.
The Act here attacked has been repealed effective July 1, 1974 (Ga.L.1974, p. 221) and a new chapter enacted dealing with the same subject matter. This repeal does not affect pending indictments.
In Johnston v. State, 227 Ga. 387, 392, 181 S.E.2d 42, this court questioned the authority of the General Assembly to include in the term depressant or stimulant drug those drugs which might be so declared by some future regulation by a designated federal agency.
'A statute will be held unconstitutional as an improper delegation of legislative power if it is incomplete as legislation and authorizes an executive board to decide what shall and what shall not be an infringement of the law, because any statute which leaves the authority to a ministerial officer to define the thing to which the statute is to be applied is invalid.' 16 Am.Jur.2d 506, Constitutional Law, § 257.
The State does not contend that a delegation of power is not involved but takes the position that the guidelines given to the State Board of Pharmacy are sufficiently restricted to prevent the section of the Act attacked from being an attempted delegation of legislative power to an executive board.
In enacting the Code section attacked, the General Assembly also made a finding and declaration of policy and purposes which read in part as follows: 'The General Assembly of the State of Georgia hereby finds that it is essential to the public health and safety to regulate and control the manufacture, distribution, delivery and possession of depressant and stimulant drugs, and other drugs which have a potential for abuse because of their depressant or stimulant effect on the central nervous system or because of their hallucinogenic effect as defined in this Chapter (Emphasis supplied). Ga.L.1967, pp. 296, 343 (Code Ann. § 79A-902).
The term 'depressant or stimulant drug' is then defined in Code Ann. § 79A-903(b). The term as there defined covers four paragraphs. Subparagraph 1 deals with any drug which contains any quantity of barbituric acid, etc. Subparagraph 2 deals with amphetamines and any substances designated by regulation presently (1967) promulgated under the federal act as habit-forming because of its stimulant effect on the central nervous system. Subparagraph 3 then includes in such term any drug which contains any quantity of a substance designated by present regulations promulgated under the federal act as having potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.
These subparagraphs are followed by Subparagraph 4, the one under attack.
Simply stated, this paragraph says a depressant or stimulant drug is anything the State Board of Pharmacy says it is without any real guidelines being treated in such subparagraph. Thus, while the General Assembly may delegate certain powers to the executive branch of government in order to carry out the law as enacted by the General Assembly, yet the subsection of the Act under attack attempted to delegate to the State Board of Pharmacy the authority to determine what acts (the possession of such substances) would constitute a crime. Under decisions exemplified by Long v. State, 202 Ga. 235, 237, 42 S.E.2d 729 and citations, this attempted delegation of power violates Article 3, Section 1, Paragraph 1 (Code Ann. § 2-1301), supra, of the Constitution of 1945.
Accordingly, the trial court erred in overruling the demurrer to Count 2 of the indictment.
Judgment reversed.
All the Justices concur, except JORDAN, INGRAM and HILL, JJ., who dissent.
In my view the law in issue here does not say 'a depressant or stimulant drug is anything the State Board of Pharmacy says it is without any real guidelines . . .'
The law in issue here, Code Ann. § 79A-903(b), defines 'depressant or stimulant drug' to mean: (1) any drug which contains barbituric acid or its salts, (2) any drug which contains amphetamine or its optical isomers or their salts, (3) any drug designated by federal regulations as having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect, and (4) 'Any substance which the State Board shall determine to be habit-forming because of its stimulant effect on the central nervous system or any drug which the State Board shall determine to contain any quantity of a substance having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect . . .'
Subpart (4) should be considered in context, not in isolation, insofar as guidelines are concerned.
Moreover, that subpart contains guidelines. It defines 'depressant or stimulant drug' as follows: Any substance which is habit-forming because of its stimulant effect on the central...
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