State v. Eley
| Decision Date | 20 October 1982 |
| Docket Number | 3 Div. 654 |
| Citation | 423 So.2d 303 |
| Parties | STATE of Alabama v. William Sanford ELEY, II. |
| Court | Alabama Court of Criminal Appeals |
Maury Smith and Edward B. Parker, II of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., and James H. Evans, Dist. Atty., for appellee.
This appeal was perfected by the State as a result of a ruling by the Circuit Court of Montgomery County granting appellee's motion to dismiss an assault charge on a plea of former jeopardy, and was in accordance with Act 82-860, which permitted appeals by the State from certain pre-trial proceedings.
Appellee then filed in this court a motion to dismiss the State's appeal on the basis that Act 82-860 was not constitutionally enacted and is, therefore, null and void. We now come to consider that motion to dismiss.
The facts. S.B. 60, which was subsequently designated Act 82-860, was duly passed by both houses of the Alabama Legislature in the 1982 Third Special Session. It was presented to the Governor on August 13, 1982, the date on which both houses adjourned sine die. The Governor signed the bill on August 22, 1982, and deposited the bill with the Secretary of State on August 25, 1982. Between the date on which the bill was presented to the Governor and the date on which the bill was deposited with the Secretary of State, there were two intervening Sundays.
The issue. Was the bill approved by the Governor and deposited with the Secretary of State in accordance with the provisions of Article V, Section 125, Constitution of Alabama, 1901, so as to become a valid act?
The holding. The bill was not approved by the Governor and deposited with the Secretary of State within ten days after final adjournment of the legislature, as required by Section 125 of the Constitution, so as to become a valid act.
The pertinent portion of Constitution Section 125 provides:
"If any bill shall not be returned by the governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent the return, in which case it shall not be a law; but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after the reassembling, otherwise it shall become a law, but bills 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." (Emphasis ours.)
The issue in this case has two prongs: (1) whether intervening Sundays are counted in the ten-day time computation, and (2) whether the process of depositing the document with the Secretary of State is a ministerial duty for which the ten-day requirement is directory, as opposed to being mandatory. We perceive that the pertinent language of Section 125, hereinabove quoted, is plain, clear, and distinct; there is no doubt, ambiguity, or uncertainty as to...
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