Alabama Advisory Opinions June 12, 1980: AGO 80-00422 (June 12, 1980)

Advisory Opinion Text

Lee L. Hale Deputy Attorney General

Walter B. Turner Chief Assistant Attorney General

William M. Bekurs, Jr. Executive Assistant

Janie Nobles Administrative Assistant

Honorable John Teague

State Senator, 19th District

P. O. Box 427

Childersburg, AL 35044

ST. CLAIR COUNTY - ELECTIONS -OFFICERS AND OFFICES

Act establishing fees to be charged by probate judges in the state will not be effective in St. Clair County until it is approved by voters in a referendum election. Compensation paid to probate judge may be changed without approval of voters.

Dear Senator Teague:

The Attorney General received your request for an opinion as to the following matter:

"A question has arisen in my district concerning the constitutionality of Act No. 556, House Bill No. 857, of the 1975 regular legislative session in light of Amendment 196 of the Alabama Constitution. This Act revises the fee schedule for services rendered in probate offices throughout the State, while Amendment 196 provides in part, as follows:

'The legislature may, from time to time, by general or local laws, to become effective only if approved by a majority of the qualified electors of St. Clair County voting at a referendum election 'held not less than three months after the final adjournment of the legislative session at which such law is enacted, fix, alter and regulate the costs and charges of courts in St. Clair county and the fees, commissions, percentages, allowances, and salary, including the method or basis of their compensation, to be charged or received by the judge of probate . . .'

"Since there has been no referendum election in St. Clair County adopting the fees provided in Act No. 556, House Bill No. 857, I would appreciate your opinion as to whether these fees can be charged by the probate office in that county.

In the event that you decide Act No. 556, House Bill No. 857, applies to the St. Clair County probate office, even though no referendum was held pursuant to Amendment 196, I would also appreciate your opinion as to whether the commissions, percentages, allowances and salary, including the method or basis of their compensation, to be charged or received by the judge of probate of St. Clair county can be altered or changed by general law without a referendum election as provided in Amendment No. 196."

The effect of a general state-wide act of the Legislature in St. Clair County was considered in Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30 (1972). A statute was enacted by the Legislature which fixed the salaries of sheriffs throughout the state. Upon considering the effect of the Act in St. Clair County under Amendment 196, the court said:

". . .we are of the opinion that, in ratifying Amendment 196, it was the intention of the people simply to give the voters of St. Clair County the option of deciding whether a general or local law fixing sheriffs' salaries, inter alia, would be effective in their county . . .

Act No. 1170, by its express terms, became effective in all counties of the State (except Greene and St. Clair) upon expiration of the terms of office of the sheriffs. By virture of Amendment 196, it will take effect in St. Clair County only when ratified by a majority of the voters ." (Emphasis added)

In the same way that the Act concerning the salaries of sheriffs could become effective and operative in St. Clair County only after it had been approved by the voters of the county in a referendum election, so Act No. 556 regarding fees paid to probate judges throughout the state will not become effective in St. Clair County until the electors of the county ratify it in a referendum election.

Therefore, the Probate Judge of St. Clair County cannot charge the fees set out in Act No. 566. He must charge those fees set out in Act No. 882, Acts of Alabama, 1953, p. 1184, which was in effect until Act No. 556 was adopted into law.

However, this conclusion is not applicable to the commissions, percentages, allowances and salary, including the method and basis of the compensation to be received by the Probate Judge of St. Clair County. It is true that Amendment 196 provides that a general or local legislative act governing the matter of compensation paid to the probate judge cannot become effective in St. Clair County until it has been approved by the voters of the county in a referendum election. However, Section 6.09(d) of Amendment 328 to the Constitution of Alabama 1901, (the Judicial Article) states, "The compensation of a judge shall not be disminished during his term". In an opinion of this office to the Honorable David B. Carnes of Etowah County dated December 30, 1974, it was concluded that the above provision of Amendment 328 prevailed over the Boutwell Amendment (Amendment 92) to the Constitution, prohibiting an increase or decrease in the compensation of public officers during their present terms of office. Thus, the prohibition of Amendment 92 does not affect the judicial officers of this State.

A probate judge is considered a judicial officer of the State. Section 6.01 of the Judicial Article (Amendment 328) includes the probate courts in the unified judicial system established by that Article. This is also stated in Liptroth v. State, 335 So.2d 683 (Ala. Crim. App.), cert, denied, 335 So.2d 688 (Ala.), cert, denied 429 U.S. 963 (1976). Thus, the provision found in Section 6.09 of Amendment 328 governing the compensation paid to judicial officers is applicable to probate judges. If this provision prevails over Amendment 92, it would likewise prevail over Amendment 196 discussed herein. Therefore, the proviso of Amendment 196 requiring the approval of the voters of St. Clair County with regard to any legislative act governing the compensation paid to probate judges including the method or basis of this compensation is of no effect because of Amendment 328. The compensation of the Probate Judge of St. Clair County may be increased by legislative enactment without the approval of the voters of that county.

If our office can be of any further assistance, please do not hesitate to contact us.

Sincerely,

CHARLES A. GRADDICK Attorney General

LYNDA F. KNIGHT Assistant Attorney General