Glustrom v. State ( 1950 )

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 Railway Co. v. Melton, 133 Ga. 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 Sup. 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., § 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., § 2-1604) requires a majority of each house present to transact business. Sec. 7, par. 4 (Code, Ann., § 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 (§ 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. 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 wrong 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 of a law. A criminal wrong concerns principle; a policing regulation by an administrative agency of government concerns procedure. A criminal offense or wrong is the breach of a negative command — “Thou shalt not steal” (Exodus 20:15). The policing regulation, on the contrary, says, “You must do this in a particular way.” Compare 1 Wharton’s Criminal Law, 44, § 29.

An administrative agency of government, such as the Department of Revenue, can have only the administrative or policing powers expressly or by necessary implication conferred upon it. Bentley v. State Board of Medical Examiners, 152 Ga. 836 (111 S. E. 379). By the Act to Tax, Legalize and Control Alcoholic Beverages and Liquors, the General Assembly declared violations of the act to be either a misdemeanor or a felony. In thus defining certain violations, the Assembly did not thereby make provision for the full and complete administration of the act. The deficiencies of administration are to be supplied by rules and regulations of the Revenue Commissioner. Generally, . the rules and regulations promulgated and presently in force (as shown by the copy of such rules and regulations on file with the State Librarian) are for the purpose of regulating and policing an industry or business generally conceded to be one that is difficult to properly regulate, and keep within the rules of law prescribed for the protection of society in the State generally. The General Assembly must ha,ve recognized that in the administration of this law the Revenue Commissioner would promulgate rules and regulations policing in character, requiring particular acts of licensees, and that other acts of such licensees be performed only in a prescribed manner. Rules and regulations could not be limited or confined to those features of the law a violation of which the General Assembly declared to be a crime.

In declaring that a violation of the rules and regulations of the State Revenue Commissioner should be punished as for a misdemeanor, the General Assembly used language which limited the criminal violation to those “in accord with the provisions of this Act.” As used by the General Assembly in this instance, “accord” means in harmony with what the Assembly has declared. In other provisions of the act, the General Assembly having declared certain acts to be a crime, the rules and regulatk>;ns must follow the declaration made. Consequently, the General Assembly has, in effect, said that a violation of the rules and regulations of the State Revenue Commissioner in accord, or in harmony, with those things declared to be a crime by the terms and provisions of the act, shall be a crime. The General Assembly did not provide that the violation of regulations policing the industry and requiring certain acts to be performed in a specified manner would be a misdemeanor. In every instance reasonable rules and regulations promulgated for administrative purposes or for policing the industry may be enforced as to licensees either by a suspension or cancellation of the license. The declaration, that a violation of “rules and regulations in accord with this Act” shall be a misdemeanor, limited the power to promulgate rules, the violation of which would be a misdemeanor, to those in harmony with what, the Assembly had already declared to be a crime.

This court will never presume that the General Assembly intended to enact an unconstitutional law. Where the language of an act is susceptible of a construction that is constitutional', and another that would be unconstitutional, that meaning or construction will be applied which will sustain the act. Unrestrained and unrestricted power by the State Revenue Commissioner to declare a violation of his administrative and policing regulations to be a misdemeanor or such declaration by the General Assembly without limiting the power to those things declared to be a misdemeanor by the Assembly, would offend the Constitution. Applying the limitation contained in § 58-1069, as was evidently intended by the Assembly, the act is not subject to the attacks made upon it.

Rule 602, which forms the basis of the accusation in this case, is an administrative or policing regulation that goes beyond those things declared by the General Assembly to be a misdemeanor. As an administrative rule or policing regulation, it could be enforced against the licensee by suspension or cancellation of his license. It has no other valid force and effect. To permit the General Assembly to abdicate and transfer to administrative agencies of government essential legislative functions, would strike down our constitutional system, and inaugurate the police state, condemned by every advocate of individual liberty and freedom. Bohannon v. Duncan, supra; Panama Refining Co. v. Ryan, 293 U. S. 388 (55 Sup. Ct. 241, 79 L. ed. 446).

The accusation did not charge a crime, because the alleged acts of the defendant (in violation of Rule 602) were not made the subject-matter of any legislative enactment, by the Assembly under its constitutional powers, and his demurrer should have been sustained.

Counsel for the State have thoroughly and ably presented the State’s case, and have cited authorities which counsel insist sustain their contentions. No case has been cited which can be said to be in point on its facts with the present case. The ruling here made is not in conflict with the rulings in Atkins v. Manning, 206 Ga. 219 (56 S. E. 2d, 260).

Judgment reversed.

All the Justices concur, except Duck-worth, C. J., Candler, and Hawkins, JJ., who dissent.