Ex parte Coker

• Decision Date: 07 December 1990
• Citation: 575 So.2d 43
• Parties: Ex parte Robert Gary COKER. (Re Robert Gary Coker v. State). 89-1034.
• Court: Alabama Supreme Court

Page 43

575 So.2d 43

Ex parte Robert Gary COKER (Re Robert Gary Coker v. State).

89-1034.

Supreme Court of Alabama.

Dec. 7, 1990.

Rehearing Granted Jan. 11, 1991.

C. Michael McInnish of McInnish & Bright, Montgomery, for petitioner.

Don Siegelman, Atty. Gen., and Rosa H. Davis and Joseph G.L. Marston III, Asst. Attys. Gen., for respondent.

David R. Boyd and W. Joseph McCorkle, Jr. of Balch & Bingham, Montgomery, for amicus curiae Alabama Ass'n of School Boards.

Kenneth Smith, Staff Atty., Montgomery, for amicus curiae Alabama League of Municipalities.

Olivia H. Jenkins, G. Keith Clark and James G. Stevens, Asst. Attys. Gen., for amicus curiae Alabama Dept. of Environmental Management.

Otis J. Goodwyn, Asst. Atty. Gen., for amicus curiae Alabama Dept. of Conservation and Natural Resources.

Richard N. Meadows, Gen. Counsel, and Jim R. Ippolito, Jr., Associate Counsel, Dept. of Educ., for amicus curiae Dr. Wayne Teague, State Superintendent of Educ.

Edward M. George, Div. of Legal and Personnel Services, Alabama Dept. of Postsecondary Educ., and Jeffery A. Foshee, Montgomery, for amicus curiae Chancellor Fred Gainous.

Richard G. Alexander, Mobile, for amicus curiae Mobile County Deputy Sheriffs Law Enforcement Ass'n.

William T. Stephens, Montgomery, for amici curiae Teachers' Retirement System of Alabama and Employees' Retirement System of Alabama.

M. Roland Nachman, Jr. and James A. Byram, Jr. of Balch & Bingham, Montgomery, for amicus curiae Alabama State Employees Ass'n.

James W. Webb of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for amicus curiae Ass'n of County Commissions of Alabama.

John G. Harrell of Bradley, Arant, Rose & White, Birmingham, and Arnold W. Umbach, Jr. of Umbach & Meadows, Opelika, for amicus curiae City of Auburn.

Joseph H. Johnson, Jr. and David W. Spurlock of Lange, Simpson, Robinson & Somerville, Birmingham, and George A. Moore of Johnston, Johnston & Moore, Huntsville, for amicus curiae Madison County Bd. of Educ.

ALMON, Justice.

Dec. 7, 1990

Robert Gary Coker was convicted and sentenced to prison for violating the Pharmacy Robbery Act, 1982 Ala. Acts, No. 82-434, codified at Ala.Code 1975, § 13A-8-50 through -52. This "act" originated as House Bill 362, so we shall refer to it as H.B. 362. Coker filed a petition for relief from conviction and sentence pursuant to Rule 20, Ala.R.Crim.P. (Temp.). In that petition, Coker alleged that the trial The record before us shows that H.B. 362 was presented to the Governor on April 26, 1982, the date of the adjournment of the 1982 Regular Session of the legislature; that the Governor approved the bill on May 4, 1982; and that the bill was received by the secretary of state on May 10, 1982.

                court never had jurisdiction to convict him, because, he argued, H.B. 362 was pocket vetoed by the Governor when he failed to deposit it with the secretary of state within 10 days of the final adjournment of the legislature as provided for in Article V, Section 125, Constitution of Alabama 1901.  The trial court denied relief and the Court of Criminal Appeals affirmed, 564 So.2d 105.   We granted Coker's petition for the writ of certiorari because it presented two questions as to which Coker's arguments had probable merit:  (1) whether the deposit of a bill with the secretary of state within the 10-day period is mandatory or merely directory;  and (2) if the bill was not properly enacted into law, then whether the statutory codification of a bill that is not deposited within the 10-day period gives it the force and effect of law
                

Article V, § 125, Constitution of Alabama 1901, provides, in pertinent part:

"[B]ills presented to the governor within five days before the final adjournment of the legislature may be approved by the governor at any time within ten days after such adjournment, and if approved and deposited with the secretary of state within that time shall become law."

Because the language of this provision is plain and unambiguous, we must apply the provision as written. Tate v. Teague, 431 So.2d 1222 (Ala.1983); Fuller v. Associates Commercial Corp., 389 So.2d 506 (Ala.1980); McGee v. Borom, 341 So.2d 141 (Ala.1976).

Section 125 provides for a 10-day period in which bills can become law after the legislature adjourns. Specifically, it provides that, "within that time" the bill must be approved and deposited with the secretary of state. The Court of Criminal Appeals has applied § 125 to hold that other bills, which the Governor similarly failed to deposit with the secretary of state within 10 days after legislative adjournment, never became law:

"The use of the conjunctive 'and' in the last phrase of the quoted provision signifies two conditions precedent to such bills becoming laws: approval by the Governor and depositing with the Secretary of State within that time (ten days). Conversely, if either condition is not met within the stated period, the bills will not become laws. We are not persuaded that the depositing with the Secretary of State is 'directory' only, which somehow waives the ten-day time period. Unless otherwise clear from the language employed, all constitutional provisions should be regarded as mandatory so as to preclude any discretion with the executive, legislative, or judicial branches of government as to whether to obey or disregard them. Following the clear and plain language of the provision and resorting to the ordinary and usual meaning of the words employed, we hold the bills must have been deposited with the Secretary of State, after their approval, and within the ten-day period. Not having been so deposited with the Secretary of State, the bill did not become law. Instead, it became the object of a pocket veto. To hold any other way would be an unwarranted judicial encroachment on constitutional revision, a matter which is reserved exclusively to the legislature and the people."

State v. Eley, 423 So.2d 303, 305 (Ala.Cr.App.) (emphasis in original), cert. denied, 423 So.2d 305 (Ala.1982); State v. Miller, 426 So.2d 949 (Ala.Crim.App.1983).

For this Court to hold that deposit with the secretary of state is only directory would be an unwarranted alteration of the clear meaning of this constitutional provision. Therefore, we hold, as the Court of Criminal Appeals has held, that bills presented to the Governor within five days of the adjournment of the legislature must be both approved by the Governor and deposited with the secretary of state within 10 days of the adjournment in order to "become law."

As an alternative argument, the State contends that, even if H.B. 362 was not deposited with the secretary of state within the time allowed by § 125, and, for that reason, did not become law, it nevertheless became law through its incorporation in the 1982 Cumulative Supplement to the Code, as part of the 1982 Replacement Volume 12. This incorporation, the State argues, occurred through Act No. 83-131, which provides in pertinent part:

"SECTION 1. The 1982 Cumulative Supplement to the Code of Alabama 1975 containing all general and permanent classified municipal laws of the state adopted by the legislature during the ... 1982 Regular Session ..., as prepared by ... the Alabama Code Commissioner, ... is hereby adopted and incorporated into the Code of Alabama 1975."

(Emphasis added.) It is clear that the incorporation act applies only to general and permanent laws. H.B. 362 never became a law and, thus, could not be the subject of statutory codification.

The State also cites Fuller v. Associates Commercial Corp., 389 So.2d 506 (Ala.1980), for the proposition that infirmities of legislative procedure in enacting an original act are cured when that act is incorporated into a code and the code is adopted by the legislature. This principle has long been recognized in this state (see Bluthenthal & Bickert v. Trager & Co., 131 Ala. 639, 31 So. 622 (1902); Bales v. State, 63 Ala. 30 (1879); Dew v. Cunningham, 28 Ala. 466 (1856)). Whatever the scope of that principle, however, it does not reach so far as to alter the approval or disapproval power of the executive branch of our government. To extend this principle to the instant case would allow statutory codification to control over a pocket veto, thus overriding the pocket veto powers of the Governor. We cannot upset the balance and separation of powers among the independent branches of our government by allowing the legislature this power.

Based on the reasons set forth above, we hold that the Pharmacy Robbery Act was pocket vetoed when it was not deposited with the secretary of state within the 10-day period as mandated by § 125. Further, we hold that the Pharmacy Robbery Act did not become law through statutory codification. Coker's conviction and sentence are due to be set aside. The judgment of the Court of Criminal Appeals is, therefore, reversed, and the cause is remanded.

REVERSED AND REMANDED.

HORNSBY, C.J., and JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.

MADDOX, J., dissents. See separate opinion at page 53.

ON APPLICATION FOR REHEARING

ALMON, Justice.

Jan. 11, 1991

A few observations are appropriate before we address the new issues raised on rehearing. When this case was originally briefed and orally argued, Assistant Attorney General Joseph G.L. Marston III did not provide the Court with the list of some 142 bills that are now alleged to have been pocket vetoed by the Governor in March 1982 or two other lists of hundreds of bills now alleged to have been pocket vetoed in 1969 and 1971. After the case was argued and submitted, Mr. Marston filed a motion to set aside submission and allow him to further brief the following issue: "Where a bill fails to become law because of procedural errors in the legislative process but the provisions of the bill are incorporated into a code which is subsequently enacted in accordance with the Constitution, do such provisions become law, like the other provisions of the code?"...