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FLETCHER, Justice.
OCGA 1382.113-8-2.1; constitutional question. DeKalb Superior Court. Before Judge Seeliger.
1. Case No. S91A0056.
The question in this case is whether or not the Act is contrary to Art. III, Sec. VI, Par. V (c) of the Constitution of Georgia of 1983, which is as follows:
The General Assembly shall not have the power to authorize any contract or agreement which may have the effect of or which is intended to have the effect of defeating or lessening competition, or encouraging a monopoly, which are hereby declared to be unlawful and void.
We hold that the Act is beyond the power of the General Assembly inasmuch as it is one that authorizes contracts and agreements which may have the effect of or which are intended to have the effect of defeating or lessening competition or encouraging monopoly.
Our basis for this conclusion is found in the express provisions of OCGA 13-8-2.1 (g) (1), which read as follows:
Every court of competent jurisdiction shall enforce through any appropriate remedy every contract in partial restraint of trade that is not against the policy of the law or otherwise unlawful. In the absence of extreme hardship on the part of the person or entity bound by such restraint, injunctive relief shall be presumed to be an appropriate remedy for the enforcement of the contracts described in subsections (b) through (d) of this Code section. If any portion of such restraint is against the policy of the law in any respect but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce so much of such restraint as it determines by a preponderance of the evidence to be necessary to protect the interests of the parties that benefit from such restraint. Such a restraint shall be subject to partial enforcement, whether or not it contains a severability or similar clause and regardless of whether the unlawful aspects of such restraint are facially severable from those found lawful.
Quite plainly, this Act is an effort by the General Assembly which would breathe life into contracts otherwise plainly void as being impermissible under the cited constitutional provision. Further, under the express terms of subparagraph (g), a court seemingly would be directed by the General Assembly to enforce contracts in which the restraint is "against the policy of the law," provided it is not so much against that "policy of the law" as to be "unconscionable."
Because the General Assembly is expressly prohibited by our Constitution from authorizing any contract that is violative of the constitutional provision, this purported Act of authorization is "unlawful and void."
2. The case is remanded to the trial court for a determination of whether the restrictive covenants in question are enforceable under the law as it existed prior to the enactment of OCGA 13-8-2.1.
3. Case Nos. S91X0057 and S91X0058.
Because of our decision in Case No. S91A0056, we find it unnecessary to reach the issues raised in these cross-appeals.
CLARKE, Chief Justice, dissenting.
As I understand Georgia's constitutional prohibition against restraints of trade, it merely prohibits the legislature from enacting statutes which unreasonably restrain trade. While the statute in question here may be questionable from a policy point of view, I cannot say that it is unreasonable. For this reason, I respectfully dissent.
Schulten & Associates, William Scott Schulten, Mark S. Izenson, E. Michael Ingram, amici curiae.
John E. Sacker, Robert S. Devins, Donald J. Ellis, Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Brazier & Schwieger, Robert C. Brazier, for Hart and Lindsey.
Trotter, Smith & Jacobs, John L. Latham, Scott K. Tippett, Sylvia King Kochler, for Jackson and Coker.
DECIDED JUNE 27, 1991.
Thursday May 21 09:48 EDT

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