*1 OF et al. 29546. GREER et al. v. STATE GEORGIA Gunter,
This is an from a that declared appeal members of the Georgia Assembly ineligible serve on the of the World Center Congress decided Authority. adversely appellants issue to the was whether there was a violation of powers II "George Act,” Smith World Center Congress Ga. L. which amended Ga. L. 245. p. p. Act created construct, erect, public corporation plan, own, remodel, maintain, to, extend, acquire, repair, add improve, equip, operate manage the Georgia World Congress Center. The Act provided the Authority members, would consist of twenty six of whom would be members of the Act, The question raised was whether because placed I, of Art.
Authority, was unconstitutional as violative Sec. I, XXIII Par. of the Georgia Constitu- tion, which states: "The legislative, and executive powers shall forever remain and no person one, shall, the duties of discharging at same time, others, exercise the functions of either of the as herein provided.”
The judgment of the trial court declared that provisions of the Act Authority of the Act remaining sections were severable and
constitutional, and that a adopted by resolution 19,1974, was valid. That resolution Authority August had ratified all previous actions of the and was adopted by participation legislator-members. contend that as members
Authority are not violative of the Constitution. that the powers provision the Constitution is to prevent one of the three any traditional branches of usurping other branch. contend any They and functions is a of each of the three traditional outside therefore, of the government. They argue,
branches
performs
"proprietary,”
the constitutional
and that
"governmental,”
*2
branches of
separate
government
balance between
of
in
be disturbed
six members
way
by permitting
can
twenty-member
governing
to sit on the
the Authority.
board of
v. State School
rely
Sheffield
(
context of a bond validation
of
Speaker
Representatives
of the House of
of the School Building
could sit as a member
Georgia
offending
2-1606)
(Code
§
Ann.
a
prohibits
Constitution
member of the General
from
"civil
holding any
in the General
office” created
his term of service
during
court held that
not
body
Building Authority
of the School
governing
a "civil office” within the
of this constitutional
meaning
The
of
issue was
provision.
"pure” separation
in
neither
raised nor decided
Sheffield.
a
prohibition
the "civil office”
is
Conceding
of
it does not
powers proscription,
"narrow”
the broader
contained
encompass
question,
"pure”
of
as
proscription,
persons
whether
are
governing
performing executive rather
than
functions.
The
"pure”
proscription
bars a member of the
branch
executive branch.
the functions of the
exercising
It must be conceded that
of
is not a
"While the Constitution declares that the
rigid principle.
and
three
departments
government
distinct,
not
from the nature of
separation is
and
&c. Americus v.
things
Mayor
Perry,
cannot be total.”
Beall,
Beall v.
must
departments
government
"While
be kept separate
and
it is
to
impossible
draw a
mathematical
line
by
action
every
can be exactly
not
which do
classified;
are some matters
and there
one
department
essentially appertain
inherently
R. Co. v.
than to another.” rather
Melton,
flexible to not to draw a always easy though government, functions line between executive in this case that functions, to us quite plain by performed executive. exclusively, primarily, is the function of the As a general principle, enacted. specific legislation executive detail, function, to the last down implementing attacked by legislation to the Authority assigned this case. can the legislature is whether question create then implement specific legislation process implementation
retain some control over appointing is no is that there
instrumentality. Appellants’
*3
Carried to its
arrangement.
constitutional defect
the
extreme,
would
arrangement
logical
committee of its
an ad hoc
Assembly
appoint
The case
specific legislation.
own members
extreme,
but
logical
at bar does not
such
present
have to
infirmity. We
evidences the same constitutional
member of
as a
participates
conclude that a
legislator
the
such as
public corporation
the
ex-
is performing
World Congress
ecutive functions.
449)
(1966), Virginia of West Supreme the have issue that we ruled on almost the same squarely decisions of this "From the above-cited here. It stated: the that courts it is manifest court and other appellate the State imposed upon and the duties powers granted the Virginia by Commission of West Building of the involved, Acts Chapter enactment or Session, 1966, are executive Regular Legislature, in character not administrative president the of Section of the statute that the senate, delegates, of the of the house of speaker the minority of the senate and leader of minority leader members of the commission the house of delegates Article V of the Constitution of this State is violative of executive or impose to confer and attempts and duties those members of upon administrative null and for that reason is and void and Legislature force and effect. In enacting statutory provision of the shall be members of the Legislature that members Legislature Commission has power to confer executive or administrative attempted executive or administrative duties impose upon of the commission which reason of members inhibition in Article V of the Constitution of express they this State cannot exercise per- P. 91. form.”
See also Ashmore v. Sewer Greater Dis Greenville trict, 211 C. 77 S. correct declaring below was provisions on the
legislators
unconstitutional. that if the of the next
Act relating appointment legislators then the entire Act must They argue be declared unconstitutional.
removal of the
Authority defeats the It from the easily plain answered. face of the Act that main operate construct and a World Congress Center. Sec. 2 of the Act "No vacancy states: shall eleven impair right [of all duties of rights perform to exercise all members] 176. Even with the Authority.” pp. removed, remain on the *4 to constitute Where an and to accomplish whole, the courts will uphold Act cannot be sustained as a to do so would certain reasonably it in part which the intent and the main correspond with
671 if, accomplish after sought stricken, remains part unconstitutional there Bennett Wheatly, v. accomplish 154 Ga. purpose. (115 83) v. Bell Tel. &c. Wright Co., (56 Ga. 227 There is reason apply principle this where defect arises from a violation State, v. Fuller v. Bailey, supra, See
principle. 85) (1974), J., (Hall, concurring Ga. 581 specially). held the Act to be unconstitutional do opinion
and stricken from the Act Division 1 of not render entire Act unconstitutional. severance surgery performed by judge the trial was correct. concur, Judgment All the Justices affirmed. Hall, J., Hill, J., disqualified. who concurs specially. Argued January 20, 1975 Decided February 11, 1975. Tidwell, E.
Charles appellants. for General, J. Bolton, Attorney Timothy Arthur K. General, Sweeney, Attorney Assistant appellees. for Hall, Justice, concurring specially. in my
I for the stated concur in the reasons State, Fuller v. opinion concurring 85). PORTERFIELD. GILMER v. Hill, court on certiorari.
This case came to is restated the Court statement of facts modification. slight with for convenience brought case citizenship diversity prior Middle District for the District United States recovery sought his wife Otis Porterfield Georgia,