---
title: Ga. Const. Art. I, Sec. II, Para. III. Separation of legislative, judicial, and executive powers.
collection: code
id: ga-const:art-i-sec-ii-para-iii
cite_as: Ga. Const. Art. I, Sec. II, Para. III
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---

# Ga. Const. Art. I, Sec. II, Para. III. Separation of legislative, judicial, and executive powers.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.

## Cross References

Enforcement of separation of powers by criminal action, § 16-10-9.

## Law Reviews

For article, ‘‘Delegation in Georgia Local Government Law,’’ see 7 Ga. St. B.J. 9 (1970). For article, ‘‘Regulation of the Legal Profession — Judicial or Legislative?,’’ see 10 Ga. St. B.J. 589 (1974). For article, ‘‘Selected Oddities in Georgia Municipal Law,’’ see 9 Ga. L. Rev. 783 (1975). For annual survey of constitutional law, see 35 Mercer L. Rev. 73 (1983). For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For article, ‘‘Federal and State ‘State Action’: The Undercritical Embrace of a Hypercriticized Doctrine,’’ see 24 Ga. L. Rev. 327 (1990). For survey of 1995 Eleventh Circuit cases on administrative law, see 47 Mercer L. Rev. 675 (1996). For article, ‘‘Campbell v. Georgia: Mandatory Minimum Sentencing Survives Separation of Power Attacks, Remaining a Viable Option for the Legislature in Its War on Crime,’’ see 17 Ga. St. U.L. Rev. 637 (2001). For article, ‘‘The Status of Administrative Agencies under the Georgia Constitution,’’ see 40 Ga. L. Rev. 1109 (2006).

For comment on Georgia Bar Ass’n v. Lawyers Title Ins. Co., 222 Ga. 657, 151 S.E.2d 718 (1966), discussing constitutional permissibility of legislative definition of practice of law and suggesting solutions to unauthorized practice of law, see 18 Mercer L. Rev. 486 (1967). For comment on Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969) as to the constitutionality of the ‘‘State Bar Act’’ (§§ 15-19-30 through 15-19-34), see 21 Mercer L. Rev. 355 (1969). For comment discussing judicial unification of the bar in light of Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969), see 6 Ga. St. B.J. 325 (1970). For comment on Rogers v. Medical Ass’n, 244 Ga. 151, 259 S.E.2d 85 (1979), invalidating Georgia statute requiring Governor’s appointments to Composite State Board of Medical Examiners be made solely from nominees submitted by state medical society as an unconstitutional delegation of legislative authority to a private organization, see 29 Emory L.J. 1183 (1980).

## 1976 Constitution.

Art. I, Sec. II, Para. IV.

## Branches.

The Constitution provided for a separate existence, distinct functions, and absolute independence of the three coordinate branches of the state government — the executive, legislative, and judicial. Holliman v. State, 175 Ga. 232, 165 S.E. 11 (1932).

This paragraph is designed to preserve inviolate the separation of the legislative and the judicial branches of the government, and to assure to each independence in the sphere of its own functions. Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Exmrs. in Optometry, 219 Ga. 364, 133 S.E.2d 374 (1963).

## Separation to Be Strictly Enforced.

— While the line of demarcation separating the legislative, judicial, and executive powers may sometimes be difficult to establish, and for this reason each of the three coordinate branches of government frequently invades the province of the others, it is nevertheless essential to the very foundation of the system of government that the mandate of the Constitution be strictly enforced. McCutcheon v. Smith, 199 Ga. 685, 35 S.E.2d 144 (1945).

## No Separation of Powers Violation.

— The trial court’s order revoking a probationer’s probation did not violate the separation of powers doctrine under Ga. Const. 1983, Art. I, Sec. II, Para. III, as the probationer’s release resulted from an administrative error, and there was no evidence of any executive department finding that the probationer had fully served an imposed sentence in confinement based on a good-time allowance or otherwise. Clark v. State, 287 Ga. App. 176, 651 S.E.2d 106 (2007).

Effect of violation of separation of

## Powers.

When an Act cannot be sustained as a whole because it violates the separation of powers principle, the courts will uphold it in part if it is reasonably certain that to do so would correspond with the main intent and purpose which the General Assembly sought to accomplish and if, after the unconstitutional part is stricken, there remains enough to accomplish that purpose. Greer v. State, 233 Ga. 667, 212 S.E.2d 836 (1975).

## Separation Cannot Be Total.

This paragraph attempts a separation of the three departments of government, which from the nature of things cannot be total. Beall v. Beall, 8 Ga. 210 (1850); Johnson v. Jackson, 99 Ga. 389, 27 S.E. 734 (1896).

## Complete Separation Not Necessarily Intended.

Although the separation of powers is fundamental to the constitutional form of government, it does not follow that a complete separation is desirable or was intended. In re Pending Cases, 234 Ga. 264, 215 S.E.2d 473 (1975).

Three departments of government are not kept wholly separate in the Georgia Constitution. In re Pending Cases, 234 Ga. 264, 215 S.E.2d 473 (1975).

While the Constitution declares that the three departments of government shall be separate and distinct, this separation is not and from the nature of things cannot be total. Greer v. State, 233 Ga. 667, 212 S.E.2d 836 (1975).

While the departments of government must be kept separate and distinct, it is impossible to draw a mathematical line by which every action can be exactly classified; and there are some matters which do not inherently and essentially appertain to one department of government rather than to another. Greer v. State, 233 Ga. 667, 212 S.E.2d 836 (1975).

Separation of powers principle is cal arrangements in a complex government. Greer v. State, 233 Ga. 667, 212 S.E.2d 836 (1975).

O.C.G.A. § 42-8-29 did not violate the constitutional principle of separation of powers, as a probation supervisor had a duty to make the supervisor’s findings and report regarding an alleged probation revocation in writing to the court with the supervisor’s recommendation; not unlike a district attorney, the probation supervisor was an employee of the Department of Corrections, within the executive branch of state government, and was charged with providing the trial court with information relevant to pending criminal proceedings over which the court alone exercised judicial authority. Wolcott v. State, 278 Ga. 664, 604 S.E.2d 478 (2004). tions from invasion by other

## Sufficiently Flexible to Permit practi-Each Branch to Protect Its Funcbranches.

The judicial branch doubtless invades the legislative field more frequently than does the legislative branch the judicial field, but it is the duty of each to zealously protect its function from invasion of the others. The legislature has ample power to prevent attempted judicial legislation. Likewise, the judiciary has the power to prevent judicial functions by the legislature, and the welfare of the state demands that it exercise this power when necessary. McCutcheon v. Smith, 199 Ga. 685, 35 S.E.2d 144 (1945).

Paragraph applicable only to state

## Functions.

This paragraph, providing for separation of legislative, executive, and judicial powers, applies only to state functions, and not to municipal functions. Shipman v. Johnson, 89 Ga. App. 620, 80 S.E.2d 717 (1954).

## No Application to Municipal Officers.

This paragraph has no application to municipal officers created by the legislature. Ford v. Mayor of Brunswick, 134 Ga. 820, 68 S.E. 733 (1910).

## Police Officer’s Probable Cause Determination.

By acting on probable cause to believe a crime was being committed, a law enforcement officer was not called upon to exercise the legislative function of defining what constituted a crime, but the executive branch function of enforcing the law; accordingly, O.C.G.A. § 40-6-395(a) was not an unconstitutional delegation of legislative authority. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).

Separation of branches is sufficient

## Reason to Treat Branches Differently.

— The basic principle of separation of the three branches of government alone is sufficient to satisfy the requirement of a reasonable basis for legislation treating one or all of the separate branches differently. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

## Person in One Branch May Investigate Another Branch.

This constitutional provision does not prohibit a person in the executive branch of the government or a person in the legislative branch of the government from investigating the official conduct of any person performing duties in any branch of the government. Dean v. Bolton, 235 Ga. 544, 221 S.E.2d 20 (1975).

Legislative members of commission

## May Not Perform Executive Functions.

— The fact that legislative members of a commission may be performing some functions that are appropriate to the legislative branch of the government does not alter the fact that they, as members of a commission, must also perform functions that are exclusively within the province of the executive branch and this is what the Constitution prohibits. Murphy v. State, 233 Ga. 681, 212 S.E.2d 839 (1975).

Legislators may appoint

## Nonlegislators to Executive Commissions.

The mere appointment, by a member of the legislative branch, of a nonlegislator to an executive commission, such as the State Campaign and Financial Disclosure Committee, is not a simultaneous discharge of duties and functions against which the constitutional doctrine of separation of powers is directed. Caldwell v. Bateman, 252 Ga. 144, 312 S.E.2d 320 (1984).

## Applicability to County Governments.

The County Building Authority Act, although designating the chairman of the board of commissioners as one of the members of the authority, was not unconstitutional under Ga. Const. 1983, Art. I, Sec. II, Para. III, which does not apply to county governments. Building Auth. v. State, 253 Ga. 242, 321 S.E.2d 97 (1984).

Georgia Law 1973, p. 3640, which amends the Act creating the Cobb County board of commissioners to provide that the chairman and each member of the board of commissioners and the chairman and each member of the planning and General Consideration (Cont’d) zoning commission fully disclose any interest in any land sought to be rezoned, is not unconstitutional inasmuch as the doctrine of separation of powers applies only to the state and not to municipalities or to county governments. Tendler v. Thompson, 256 Ga. 633, 352 S.E.2d 388 (1987).

Failure to point out wherein an Act alleged to be violative of this paragraph is repugnant to and in conflict with the provision presents no question of judicial determination. Williams v. State, 187 Ga. 415, 1 S.E.2d 27 (1939).

Juvenile court jurisdiction statute does not violate the separation of powers doctrine of the state constitution, nor does it violate the due process and equal protection provisions of the federal and state constitutions. Bishop v. State, 265 Ga. 821, 462 S.E.2d 716 (1995); Murphy v. State, 267 Ga. 100, 475 S.E.2d 590 (1996).

Prosecutor’s decision to bring an nile court does not violate the separation of powers doctrine, because the initial option to select a forum when concurrent jurisdiction exists belongs to the litigant, and it is neither judicial, legislative, or executive power. Chapman v. State, 259 Ga. 592, 385 S.E.2d 661 (1989).


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