On the other hand, our research reveals that the highest courts of at least five states have correctly found such attempted delegation of legislative power unconstitutional. See Howell v State, 300 So.2d 774 (Miss, 1974), State v Gallion, 572 P.2d 683 (Utah, 1977), Sundberg v State, 234 Ga. 482; 216 S.E.2d 332 (1975), State v Rodriguez, 379 So.2d 1084 (La, 1980), and State v Johnson, 84 S.D. 556; 173 N.W.2d 894 (1970). Thus, it is far from clear, as the Uriel Court stated, that its holding represented the majority position; indeed, Uriel may be just as easily said to reflect a backward, minority view.
In his second principal enumeration of error, appellant sought at trial level and again before this court to have the phencyclidine offense dismissed as being based upon an unconstitutional statute. In Sundberg v. State, 234 Ga. 482, 484 ( 216 S.E.2d 332) the Supreme Court concluded that § 79A-903 (b) (4) of the Code Annotated (Ga. L. 1967, pp. 296, 344; 1970, pp. 470, 471), dealing, inter alia, with phencyclidine was in constitutional disregard of Art. III, Sec. I, Par. I (Code § 2-1301) of the Constitution of 1945, in that there was an unlawful delegation of legislative responsibility of the authority to denote as a crime the unlawful possession of yet undefined and unnamed substances. Though the Act involved was repealed effective July 1, 1974 (Ga. L. 1974, pp. 221, 229 (Code Ann. § 79A-805) and Ga. L. 1974, pp. 221, 238 (Code Ann. § 79A-808 (c) (9)) that repeal did not affect pending indictments.
Nor may administrative agencies change a statute by interpretation, or establish different standards within a statute that are not established by a legislative body. Rather, as an administrative body, SHPA is authorized only to adopt and implement rules "sufficient to administer" the Act's provisions, including the CON program. That limited grant of authority does not authorize SHPA to establish a separate class of health care facilities and then exempt that class from the Code's requirements. Put another way, SHPA cannot, consistent with its limited authority to implement the Act, determine which facilities must comply with the Act's CON requirements, or unilaterally create exclusions from those requirements. Id. (quoting Sundberg v. State, 234 Ga. 482, 483 ( 216 S.E.2d 332) (1975)). 73 CJS, Public Administration Law Procedure, § 32 (1983 Supp. 1997).
SHPA's authority can extend only to the performance of the latter administrative function, as it has no constitutional authority to legislate. See generally Sundberg v. State, 234 Ga. 482 ( 216 S.E.2d 332) (1975). SHPA's construction of its authority under OCGA § 31-6-47 (c) would permit it to do far more than merely administer and effectuate an existing enactment of the General Assembly. SHPA would have complete and unbridled authority to determine what health care facilities are subject to the Act, since it would have the power to exempt from the mandate of the Act any facility which the General Assembly had left unexempted, but the exemption of which SHPA otherwise "deems compatible with the purposes of" the Act.
3. Nor is there any merit to Eaves' related contention that the Governor's discretion is so broad that it amounts to an improper delegation of the power to legislate under Sundberg v. State, 234 Ga. 482, 484 ( 216 S.E.2d 332) (1975). Compare Williamson v. Housing Auth. of Augusta, 186 Ga. 673, 681 ( 199 S.E. 43) (1938).
This enumeration is without merit. Defendant also argues that the Dangerous Drug Act is unconstitutionally vague and constitutes an illegal delegation of legislative authority because it fails to list or codify which drugs are dangerous. Defendant argues that the Dangerous Drug Act delegates to the director an unrestricted power to determine penal liability for possession of products on the market, citing Sundberg v. State, 234 Ga. 482 ( 216 S.E.2d 332) (1975). Sundberg involved the Drug Abuse Control Act which was repealed in 1974.
Appellant argues that the Code section and rule cited above are unconstitutional because they authorize the department to establish a crime. See Sunberg v. State, 234 Ga. 482 ( 216 S.E.2d 332) (1975) and Howell v. State, 238 Ga. 95 ( 230 S.E.2d 853) (1976). We find these cases inapposite and affirm.
The Act attacked in the present case contains no such provision but merely provides that the violation of any of the rules or regulations promulgated by the Commission shall constitute a misdemeanor. The decision of this court in Johnston v. State, 227 Ga. 387, 392 ( 181 S.E.2d 42) (1971), recognized the authority of the General Assembly to adopt as part of a statute, a regulation presently in force and to make the violation thereof a crime, while the decision in Sundberg v. State, 234 Ga. 482 ( 216 S.E.2d 332) (1975), declared unconstitutional a statute which delegated the authority to determine what drugs fell within the category of depressant or stimulant drugs. "`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."
This is a habeas corpus seeking to set aside a sentence of two years probation and a $2,000 fine on a nolo contendere plea for possessing phencyclidine. Appellant was indicted and sentenced under Code Ann. § 79A-903 (b) (4) prior to that section being held unconstitutional by this court in Sundberg v. State, 234 Ga. 482 ( 216 S.E.2d 332) (1975). The trial court held the Sundberg decision was not retroactive and dismissed the petition.
We also said in Estevez, supra, that "an accused may be prosecuted for each crime arising from the same conduct. The proscription is that he may not be convicted of more than one crime if one crime is included in the other." 3. Appellant enumerates as error the trial court's overruling his motion to declare Code Ann. §§ 79A-803 (a), 79A-805 (a), 79A-809 (c) of the Georgia Controlled Substances Act unconstitutional as violative of Art. I, Sec. I, Par. 23 (Code Ann. § 2-123) (separation of powers) and Art. III, Sec. I, Par. I (Code Ann. § 2-1301) (delegation of legislative power) of the Georgia Constitution. Appellant cites as authority Sundberg v. State, 234 Ga. 482 ( 216 S.E.2d 332) where this court declared Code Ann. § 79A-903 (b 4) of the Georgia Dangerous Drugs Act, the predecessor of the statute sub judice, unconstitutional as violating the same constitutional provisions as enumerated here. There is no merit in this contention.