Alabama Advisory Opinions July 11, 2003: AGO 2003-184 (July 11, 2003)

AGO 2003-184.

Dear Governor Riley:

This opinion of the Attorney General is issued in response to your request.

For purposes of compliance with the provisions regarding notice, may the requisite publication of Act 2003-144 begin prior to the effective date of the act?

Act 2003-144 is a local act applicable to Perry County authorizing the county commission to levy an additional ad valorem tax and providing for a referendum for approval of the tax. This Office recently held that the local referendum election to be held pursuant to this act must be held in accordance with sections 17-18-1 through 17-18-7 of the Code of Alabama and may not be held until the effective date of the act. Opinion to Honorable Donald R. Cook, Perry County Judge of Probate, dated June 20, 2003, A.G. No. 2003-170.

Section 17-18-2 provides that the election shall be held on the day directed by the Governor.

Ala. Code § 17-18-2 (1995). The Governor must issue a writ of election directed to the sheriff of the county in which the election is to be held.

Ala. Code § 17-18-3 (1995). Section 17-18-5 requires the sheriff of the county to give notice of the election.

Ala. Code § 17-18-5 (1995). The notice must be given through publication in a newspaper of general circulation in the county pursuant to section 6-8-60 of the Code of Alabama.

Ala. Code § 6-8-60 (1993). Section 6-8-61 provides that "[i]f the length of notice is not otherwise prescribed, it must be for three successive weeks."

Ala. Code § 6-8-61 (Supp. 2002). The length of notice for the local referendum election is not otherwise prescribed. Therefore, notice of the Perry County referendum must be published three weeks before the date set for the election. It has been proposed that the local referendum election in Perry County be held in conjunction with the special election called for the voters to consider the proposed constitutional amendment establishing the Alabama Excellence Fund that has been set for September 9, 2003.

Section 3 of Act 2003-144 provides that it shall become effective on the "first day of the third month following passage and approval by the Governor, or its otherwise becoming law." 2003 Ala. Acts No. 2003-144. Act 2003-144 was approved by the Governor on June 13, 2003; thus, the effective date of the act is September 1, 2003.

No statute or act has any force until it becomes law, and a statute or act does not become law until the day fixed for it to go into effect. In the Matter of R.W. , 588 So. 2d 499, 500 (Ala. Civ. App. 1991); Cf. Drs. Lane, Brant, Eubanks & Dulaney v. Otts , 412 So 2d 254, 259-60 (Ala. 1982) (a statute takes effect from the date of its approval unless another time is fixed); Norton v. Lusk , 248 Ala. 110, 123, 26 So. 2d 849, 860 (1946) (the Legislature has the power to set a deferred date for the operation of an act). In these circumstances, the Governor has no authority to issue a writ of election with respect to the Perry County referendum until September 1, 2003, the effective date of the act. Assuming the Governor issues the writ on September 1 and sends notice to the sheriff, the sheriff must publish notice of the election for three consecutive weeks before the date set for the election. Thus, the election could not be held on September 9, 2003. The notice of the election may not be published before the effective date of the act because there is no authority to call an election until the effective date of the act and a writ of election is issued by the Governor and received by the sheriff.

The Governor has no authority to issue a writ of election pursuant to Act 2003-144 until the effective date of the act. Publication of notice of the election may not begin before the effective date of the act.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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