Sundberg v. State , 234 Ga. 482 ( 1975 )

Nichols, Chief Justice.

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 Art. 1, Sec. 1, Par. 23 (Code Ann. § 2-123) (separation of powers) and Art. 3, Sec. 1, Par. 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: "The term 'depressant or stimulant drug’ means: ... 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: Provided, however, no drug shall be considered as a depressant or stimulant drug if the State Board shall expressly determine that such drug has no depressant or stimulant effect on the central nervous system and has no hallucinogenic effect.”

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The Act here attacked has been repealed effective July 1, 1974 (Ga.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 SE2d 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 AmJur2d 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 SE2d 729) and citations, this attempted delegation of power violates Art. 3, Sec. 1, Par. 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. Argued May 12, 1975 Decided May 27, 1975. Nixon, Yow, Waller & Capers, John B. Long, for appellant. Richard E. Allen, District Attorney, Sam B. Sibley, Jr., Assistant District Attorney, for appellee.