Alabama Advisory Opinions April 27, 1990: AGO 90-00252 (April 27, 1990)

Advisory Opinion Text

Honorable Ted Boyett

Judge of Probate

Lamar County

Courthouse: Main street

Vernon, AL 35592

Constitutional Amendments -Elections - Water and Fire Protection Authorities -Tobacco Tax - Funds

Election should be held pursuant to Act 88-666 to authorize Water Coordinating and Fire Prevention Authority. Funds collected pursuant to acts levying taxes to be distributed to such authority should be held in escrow until such authority is created.

Dear Judge Boyett:

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

QUESTIONS

1. Does Lamar County need to hold an election authorizing an amendment to the constitution for the creation of the Lamar County Water Coordinating and Fire Prevention Authority?

2. Can the Lamar County Commission, at this time, disperse to the Lamar County Water Coordinating and Fire Prevention Authority money received from the tobacco tax as set out in Act 88-473?

FACTS, LAW AND ANALYSIS

Act 88-666 proposed an amendment to the Alabama Constitution of 1901 authorizing the establishment and operation of a Lamar County Water Coordinating and Fire Prevention Authority. The Act provided for an election upon the proposed amendment to be held ". . . at the next general, special, primary or constitutional amendment election after three months from the final adjournment of the current session of the Legislature."

The legislative session was the 1st Special Session of the 1988 Legislature which adjourned in late September of that year. As there were no elections in 1989 in Lamar County, the "next . . . election" will be the primary election to be held on June 5, 1990.

The amendment itself provides: "Any law enacted at the 1988 Special Session of the Legislature to authorize the creation of such authority in Lamar County and to implement this amendment . . . shall become effective upon ratification of this amendment."

No such law was enacted at the 1988 Special Session, but Act 89-472 authorized the creation of the Lamar County Water Coordinating and Fire Prevention Authority. Section 21 of Act 89-472 provides:

"This act shall become effective immediately upon its passage and approval by the Governor, or upon the passage and approval of a constitutional amendment authorizing the creation of the Lamar County Water Coordinating and Fire Prevention Authority."

In view of the foregoing, an election upon the constitutional amendment proposed by Act 88-666 should be held on June 5, 1990.

Act 88-940 authorized and levied a tax, a portion of which was to be distributed to the Lamar County Water Coordinating and Fire Prevention Authority. The last paragraph of Section 6 of Act 88-940 provided:

"In the event this act shall become effective prior to the passage of an act providing for the incorporation of the Lamar County Water Coordinating and Fire Prevention Authority, any funds held by the Lamar County commission to the credit of the said Lamar County Water Coordinating and Fire Prevention Authority shall be held in escrow until such time as such authority is incorporated."

This Act was specifically repealed by Act 89-473. The repealer clause ended with the following proviso:

". . . any revenue collections and distributions in accordance with such act are hereby ratified, validated and confirmed."

The last paragraph of Section 6 of Act 89-473 is identical to the last paragraph of Section 6 of Act 88-940 quoted above.

Section 21 of Act 89-472 is ambiguous in that it seems to provide for two separate and distinct alternative effective dates: one upon approval by the Governor, which was May 4, 1989; and the other approval, of a constitutional amendment authorizing the creation of the Lamar County Water Coordinating and Fire Prevention Authority, presumably the amendment proposed by Act 88-666 which is to be submitted to the electors on June 5, 1990. It appears that the bill which became Act 89-472 was drafted with the intent to be adopted at the same session as the act proposing the amendment, Act 88-666. However, the authority which can be created pursuant to Act 89-472 does not require a constitutional amendment.

It seems clear that Acts 88-666, 88-940, 89-472 and 89-473 are coordinate parts of the legislative scheme to provide for a Lamar County Water Coordinating and Fire Prevention Authority, and therefor they should be read together. Doing so gives us the following: the Act authorizing creation of the Lamar County Water Coordinating and Fire Protection Authority, Act 89-472, became operative when approved by the Governor. Had it not been so approved, it would have become operative upon adoption of the amendment proposed by Act 88-666. Upon incorporation of the Authority pursuant to Act 89-472, the funds collected and held in escrow pursuant to Acts 88-940 and 89-473 should be distributed to the Authority as provided in said Acts.

CONCLUSION

Your first question is answered with a qualified affirmative; an election upon the amendment proposed by Act 88-666 should be held on June 5, 1990; however, it is not necessary that the amendment be approved in order for the purposes of Act 89-472 to be effected. Your second question is answered that when the Lamar County Water Coordinating and Fire Prevention Authority is properly incorporated, the funds collected pursuant to Acts 88-940 and 89-473, should be distributed to the Lamar County Water Coordinating and Fire Prevention Authority.

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

PHILIP C. DAVIS, Assistant Attorney General