August 5, 1993
HAND DELIVERED Mr. Jerry Tillett Legal Counsel to the President Pro Tempore Room 2007 Legislative Building Raleigh, North Carolina 27601-2808
Re: Advisory Opinion; Action necessary for a bill to become law; Article II, §22 of the North Carolina Constitution
Dear Jerry:
You ask our opinion on the status of five bills that passed third reading in both the Senate and House, were ordered enrolled, and were assigned ratified numbers. The bills inadvertently were not signed by the President of the Senate and the Speaker of the House before adjournment.
For reasons which follow, we believe none of these bills may become law until ratified in an extra or regular session of the General Assembly.
The North Carolina Constitution sets forth the procedure which must be followed for a bill to become law. "All bills and resolutions of a legislative nature shall be read three times in each house before they become laws, and shall be signed by the presiding officers of both houses." (Emphasis added). Article II, §22, North Carolina Constitution. The Constitution does not address when bills "shall be signed by the presiding officers." However, our Supreme Court has addressed this question. In a decision handed down in 1879 interpreting a provision similar to Article II, §22, the Court concluded that the Constitution requires that the signatures of the presiding officers must be affixed during the session and prior to adjournment.
In Scarborough v. Robinson, 81 N.C. 409, 415 (1879), the Court addressed the issue whether a bill "introduced into the House of Representatives …, was read three times in that body and in the Senate, and was passed and declared ratified in each House … (and) failed to receive the attesting signatures of the presiding officers of the two houses, which was not discovered until after the final adjournment," was in fact law. The Court concluded that it was not.
"In our opinion, the signatures of the presiding officers of the two houses under and by force of the words used in our Constitution, are an essential pre-requisite to the existence of the statute the finishing and perfecting act of legislation – and must be affixed during the session of the General Assembly. *** It would seem that the ratification should be subscribed and attested in the presence of the house and most certainly it can not be done after the close of the session …." Id. at 418, 420.
Although Scarborough is dictum concerning the question of the timely signing of a bill by the presiding officers, (the deciding issue before the Court was whether the President of the Senate and the Speaker of the House could be forced to sign a bill after the Legislature had adjourned), the Court discussed at length when a bill should be signed to become law, and emphatically
suggested that the Constitution required that the presiding officers sign the bill during the session
and prior to adjournment.
From all the materials we have reviewed, it is clear that both Houses have in fact adjourned.
Although an argument can be made that the presiding officers could sign these bills into law after
adjournment, since Scarborough is our only appellate decision which directly addresses this
issue, we suggest that the prudent course is to require these bills be ratified during a session of
the General Assembly.
Should you have any questions, please contact us.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General