Alabama Advisory Opinions June 20, 2003: AGO 2003-170 (June 20, 2003)

Alabama Attorney General Opinions

2003.

AGO 2003-170.

Dear Judge Cook:

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

QUESTION

Does the Perry County Commission have the authority to order and hold a special election on July 29, 2003, pursuant to Act 2003-144, or must the election be held in accordance with sections 17-18-1 through 17-18-7 of the Code of Alabama?

FACTS AND ANALYSIS

Act 2003-144 is a local act relating to Perry County authorizing the county commission to levy an additional ad valorem tax and providing for a referendum for the approval of the tax levy. Section 1 of the act provides as follows:

Pursuant to subsection (f) of Amendment No. 373 to the Constitution of Alabama of 1901, the Perry County Commission, in addition to any other tax, may levy an ad valorem tax in the amount of 19 mills on each dollar of assessed value of property in the county.

2003 Ala. Acts No. 2003-144. Section 2 of the act provides that the increase in the tax rate is subject to the "approval of a majority of the qualified voters of the county who vote on the proposed increase at the next general, primary, constitutional, or special election held for that purpose." Id .

Subsection (f) of section 217, as amended by Amendment 373 of the Alabama Constitution, provides, in pertinent part, as follows:

On or after October 1, 1979, any county, municipality or other taxing authority may at any time increase the rate at which any ad valorem tax is levied above the limit otherwise provided in this Constitution; provided, that the proposed increase to be made pursuant to this subsection shall have been (1) proposed by the governing body of the taxing authority after a public hearing on such proposal, (2) thereafter approved by an act of the legislature, and (3) subsequently approved by a majority vote of the qualified electors residing in the taxing authority who vote on the proposal at a special election called and held in accordance with the law governing special elections.

Ala. Const. amend. 373 (emphasis added).

Special elections are governed by the provisions of section 17-18-1, et seq ., of the Code of Alabama. Section 17-18-1 provides, in pertinent part, as follows:

Special elections are to be held in the following cases:

* * *

(5) In such other cases as are or may be provided by law.

Ala. Code § 17-18-1 (1995). The date for holding the special election is set in accordance with section 17-18-2 of the Code of Alabama, which states that "[a]ll special elections shall be held on such day as the governor may direct ."

Ala. Code § 17-18-2 (1995) (emphasis added). Section 17-18-3 provides as follows:

All special elections provided for by this chapter are to be ordered by the Governor, who must issue writs of election, directed to the sheriffs of the counties in which such election is required to be held and must specify therein the district or county in which, and the day on which, such election is to be held; the cause and object of the same; the name of the person in whose office the vacancy has occurred and, in all cases in which a special election is directed in a district composed of more than one county, such election must be directed to be held on the same day in each county.

Ala. Code § 17-18-3 (1995). The sheriff of the county gives notice of the election pursuant to section 17-18-5, which states as follows:

Whenever the sheriff of any county receives a writ of election directing a special election to be held or receives notice of a special election for representatives in congress or for any state or county officers, such sheriff must immediately give notice by proclamation of the time, place and object of such election as provided by law.

Any sheriff who fails to give notice of a special election ordered by the Governor, as required by law, is guilty of a misdemeanor.

Ala. Code § 17-18-5 (1995). The sheriff must also, within three days after receiving notice from the Governor, notify the probate judge and the circuit clerk of the special election.

Ala. Code § 17-18-6 (1995). The special election must be held and conducted, unless otherwise provided, in accordance with the general election laws.

Ala. Code § 17-18-7 (1995). Thus, the election must comply with all the time periods and deadlines applicable to a general election, including those for absentee ballots.

Special elections held pursuant to Amendment 373, such as the election to be held pursuant to Act 2003-144, must be held in accordance with section 17-18-1, et seq ., of the Code of Alabama. See Opinion to Honorable Ray Campbell, Member, State Senate, dated March 30, 1990, A.G. No. 90-00184. Amendment 373 does not authorize the county commission to set the date of the election.

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. Accordingly, an election pursuant to this act may not be held until after the act becomes law.

The date set for the election must be precleared under section 5 of the Voting Rights Act of 1965 before it is implemented. 42 U.S.C. § 1973c (1994).

CONCLUSION

The special election to be held pursuant to Act 2003-144 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 after the effective date of the act. The county commission is not authorized to set the date of the election.

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

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