Alabama Advisory Opinions February 16, 1990: AGO 90-00150 (February 16, 1990)

Advisory Opinion Text

Honorable Allen L. Tapley

Administrative Director of Courts

Administrative Office of Courts

817 South Court Street

Montgomery, AL 36130-0101

Court Costs - Referendum Elections - courts

1. Because the amendment proposed by Act No. 82-201 did not receive a majority of the votes in a Winston County referendum, it is not effective and the $8.00 court fee set by Act No. 82-172 cannot be collected.

2. Amendment No. 424 was not ratified so as to become an effective part of the State Constitution.

Dear Mr. Tapley:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTION

Since Act 82-172 was contingent upon approval of proposed constitutional Amendment 424 by referendum of the qualified electorate of Winston County, which never occurred, should the $8.00 local court costs authorized by the Act be assessed and collected in criminal and quasi-criminal cases tried in Winston County?

FACTS AND ANALYSIS

Amendment no. 424 to the Constitution of Alabama, 1901 states that the Legislature may from time to time by general, special or local law fix, regulate or alter court costs in Winston County and the method or basis of distribution of revenues from these costs.

This amendment was proposed by Act No. 82-201,. Acts of Alabama 1982, p. 236, which states in pertinent part:

"Section 1. The following amendment to the Constitution of 1901 is proposed and shall become valid as a part of the Constitution when approved by a majority of the qualified electors voting thereon and upon proclamation of the Governor:

"PROPOSED AMENDMENT

"The Legislature may, from time to time, by general, special or local law, fix, regulate and alter the costs and charges of any court in Winston County and the method or basis of distribution of any revenues therefrom.

"Section 2. An election upon the proposed amendment is ordered to be held at the next general, special or primary election after the expiration of three months from final adjournment of the current session of the legislature. The election shall be held in accordance with the provisions of Sections 284 and 285 of the Constitution of Alabama, as amended, and Sections 17-17-1 through 17-17-6 of the Code of Alabama 1975. . . .

"Section 4. This amendment shall not become effective unless approved by referendum of the qualified electorate of Winston County. Said referendum shall be held at the same time as the election for the ratification of this amendment, as provided for in Section 2, above, and no further election shall be required."

Act No. 82-172, Acts of Alabama 1982, p. 202, provides:

"Section 1. A total fee in the amount of eight dollars ($8.00) for costs and charges in criminal cases in any court of Winston County, whether municipal, district or circuit court, shall be collected by the clerk of any such court and shall be deposited in the Sheriff's Fund of Winston County for law enforcement purposes. . . .

"Section 4. The provisions of this act shall become effective upon a majority of the qualified electors of the county approving, at a referendum election called for the purpose, the levying of additional court costs and charges in Winston County. Such election shall be called at the same election at which the proposed constitutional amendment, passed in the current session of the Legislature relating to costs and charges of court in Winston County, appears on the ballot; provided, however, the provisions of this act shall not become operative unless the said constitutional amendment is ratified by a majority of the qualified electors who .vot e thereon at a referendum election , if" "a" majority of the qualified electors voting at said election shall not approve the said constitutional amendment, the provisions of this act shall become null and void." (Emphasis added.)

According to the provisions of Act No. 82-201, the proposed amendment [which became Amendment No. 424] was to become a part of the State Constitution when approved by a majority of the voters [of the state] and upon proclamation of the Governor. This reiterates the provisions of Amendment No. 24 and Section 285 to the Constitution of Alabama, 1901 which provide that proposed amendments to the State Constitution must be voted on by the qualified electors of the state and receive a favorable vote from a majority voting thereon to become a part of the Constitution. Act No. 82-201 further states that the amendment shall not become effective unless it is approved by the qualified electors of Winston County in a referendum to be held at the same time as the election for ratification. This condition is also stated in Act No. 82-172. In Section 4 of Act No. 82-172, it is stated that the provisions of that Act providing for a fee of $8.00 in criminal cases to be collected and deposited in the Sheriff's Fund shall become effective upon approval by a majority of the qualified electors of the county at a referendum to be called at the same time of the election on the proposed amendment. It is further stated in Section 4 that the provisions of that Act shall not become operative if the proposed amendment is not approved by a majority of the voters at the referendum election.

It is stated in your request that the proposed constitutional amendment received a majority of the votes statewide, but it was not approved in the election when it was submitted to the voters of Winston County.

CONCLUSION

Because the amendment proposed by Act No. 82-201 did not receive the approval of a majority of the voters in a Winston County referendum, it is not effective and the $8.00 court fee set by Act No. 82-172 cannot be collected.

QUESTION 2

Since Act 82-201 provided for a statewide election in Section 2 of the Act and approval by referendum of the qualified electorate of Winston County in Section 4 of the Act, was Amendment 424 ratified?

FACTS AND ANALYSIS

The answer to this question is in the negative. In order for the amendment proposed by Act No. 82-201 to become a valid part of the State Constitution, two conditions had to be met as provided in Act No. 82-201: (1) the proposed amendment had to be approved in a general, special or primary election by a majority of the voters of the state voting on the proposed amendment and upon proclamation of the Governor, and (2) the proposed amendment had to be approved by a majority of the voters of Winston County in a referendum election held at the same time as the election in which the voters of the state voted on the proposed amendment. This is reiterated in Act No. 82-172 as previously discussed. The first of these conditions was met when the proposed amendment was approved by the voters of the state. However, the second condition was not met because the proposed amendment was not approved by a majority of the voters of Winston County in the referendum election held on the proposed amendment.

CONCLUSION

Amendment No. 424 was not ratified so as to become an effective part of the State Constitution.

I hope this sufficiently answers your questions. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

DON SIEGELMAN Attorney General

LYNDA K. OSWALD, Assistant Attorney General

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Notes:

The amendment proposed by Act No. 82-201 was prior to the ratification of Amendment No. 425 which allowed amendments affecting only" one county to be voted on only by the voters of the affected county and to become part of the Constitution upon receiving a majority vote from the voters of the county.

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