Alabama Advisory Opinions November 26, 2007: AGO 2008-14 (November 26, 2007)

Alabama Attorney General Opinions

2008.

AGO 2008-14.

Dear Representative Wood:

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

QUESTION

What was the "time of ratification" of Amendment 629 to the Constitution of Alabama, which now appears as Section 7 of the Official Recompilation to the Constitution of Alabama, Local Amendments, Calhoun County?

FACTS AND ANALYSIS

Section 7 of the Calhoun County local amendments ("Section 7") is a local constitutional amendment relating to the phasing out of super-numerary programs in Calhoun County. Section 7 states, in relevant part, as follows:

(b) A mayor, sheriff, or elected or appointed Calhoun County official may not assume a supernumerary office after the effective date of this amendment. Any person who, on the effective date of this amendment, is entitled to participate in a supernumerary program may continue to participate in that supernumerary program, which shall include the assumption of a supernumerary office according to the terms and conditions of the law which established that supernumerary program. Every mayor, sheriff, or elected or appointed Calhoun County official may participate in the Employees' Retirement System of Alabama upon the same terms and conditions as may be specified by law for any other employee in the same retirement system. Calhoun County officials holding office at the time of the ratification of this amendment shall be eligible to purchase service credit in the Employees' Retirement System for the time the official has served in the current office; pro-vided, however, the official shall forego the assumption of a supernumerary office and must make the election within one year of the effective date of this amendment.

Ala. Const. Local Amends., Calhoun County §7 (amend. 629) (emphasis added). This section states that Calhoun County officials holding office at the time of the ratification of Section 7 are eligible to purchase service credit in the Employees' Retirement System.

You have informed this Office that Mr. J. D. Hess served on the Calhoun County Commission from 1991 until November 9, 1998. Mr. Hess would like to purchase service credit in the Employees' Retirement System for the time of his past service, pursuant to section 36-27-6.1 of the Code of Alabama. The question, then, is whether Mr. Hess was hold-ing office at the time of the ratification of Section 7.

Section 284.01 of the Constitution of Alabama sets forth the pro-cedure for the adoption of proposed local constitutional amendments, providing that "[a]ny proposed constitutional amendment which affects or applies to only one county shall be adopted as a valid part of the con-stitution by a favorable vote of a majority of the qualified electors of the affected county who vote on the amendment." Ala. Const. art. XVIII, § 284.01(a) (amend. 425, 555) (emphasis added). This section states that local constitutional amendments must be adopted by a vote of a majority of the qualified electors of the affected county who vote in the election. Id .

The proposition that constitutional amendments are ratified by a vote of the people is also supported by 16 Corpus Juris Secundum, Con-stitutional Law § 51, which states as follows:

Ratification by the people of a proposed con-stitutional amendment is generally a vital ele-ment in the procedure of amending a state constitution. Town v. Suttles , 838 69 S.E.2d 742 (Ga. 1952). Accordingly, prior to ratification by the people , a proposed legislative amendment is of no effect whatever. In re Opinion of the Jus-tices , 39 So. 2d 665 (Ala. 1949). The legislature may provide for the holding of an election for ratification or rejection of a proposed amend-ment. City of Bessemer v. Birmingham Elec. Co. , 40 So. 2d 193 (Ala. 1949).

16 C.J.S. Constitutional Law § 51 (2007) (emphasis added). These cases collectively hold that ratification is performed by a vote of the people. Id. More specifically, the Supreme Court of Alabama has stated, "[a]s a general rule a constitutional amendment takes effect from the day of its ratification by the voters to whom it is submitted for that purpose." City of Bessemer v. Birmingham Elec. Co. , 252 Ala. 171, 40 So. 2d 193 (Ala. 1949) quoting State v. Kyle , 65 S.W. 763, 765 (Mo. 1901). Ratification is therefore accomplished by a vote of the people. Certification and proc-lamation are the official actions that must be taken by government offi-cials to recognize that the voters ratified the amendment.

Following the election by the people, the votes are counted and the number of votes for and against the amendment from each of the respec-tive counties are ascertained by the canvassing board in each county. Ala. Code § 17-14-51 (2006). These vote totals are certified to the Sec-retary of State. Id . The Secretary of State, in the presence of the Gover-nor and the Attorney General, or one of them, opens the certificates and ascertains whether a majority of the qualified electors of the state voted in favor of the amendment. Ala. Code § 17-14-52 (2006). This certifi-cation of the results must be done within 22 days after the election. Ala. Code § 17-12-17 (2006). The results of the election are then to be made known by a proclamation by the Governor. Id . No time is set forth in the Code for the Governor to make this proclamation. Thus, the date the Governor proclaims the result of the election is not the time the voters ratified the amendment but is a notice to the public of the votes cast for and against the proposed amendment on the date of the election.

Based on the foregoing, it is the opinion of this Office that the "time of the ratification" of a proposed amendment to the Constitution of Alabama is the time of approval by a vote of the majority of the qualified electors. In the case of Section 7, a majority of the qualified electors approved the proposed amendment on November 3, 1998. Because Mr. Hess held office until November 9, 1998, he was holding office at the time of the ratification of Amendment 629.

CONCLUSION

The "time of the ratification" of Section 7 of the Calhoun County Local Amendments was November 3, 1998, the date the amendment was approved by a vote of the qualified electors.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Noel S. Barnes of my staff.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/NB

322730/110371