If both houses of the NC legislature passed a bill on third reading and ordered it enrolled, but the presiding officers forgot to sign it before adjournment, did the bill still become law?

Plain-English summary

Five bills passed third reading in both North Carolina legislative chambers, were ordered enrolled, and received ratified numbers, but the Senate President and House Speaker did not sign them before adjournment. The AG was asked whether they could still become law.

Article II, § 22 of the North Carolina Constitution requires the presiding officers' signatures but does not specify when they must sign. The AG discussed Scarborough v. Robinson, an 1879 state Supreme Court decision saying the signatures must be affixed during the session and before adjournment. The AG noted that the case's deciding issue was whether the officers could be compelled to sign after adjournment, making its discussion of the timing requirement dictum.

The AG believed the five bills could not become law until ratified during an extra or regular session. It acknowledged an argument that the officers could sign them after adjournment. Because Scarborough was the only appellate decision directly addressing the issue, the AG recommended ratification during a legislative session as the prudent course. The opinion did not specify that each bill had to be reintroduced or pass new readings.

Currency note

This opinion addressed five bills in 1993 and relied on the appellate authority then available. Check current constitutional text, legislative procedure, and later case law for a present question.

Background and statutory framework

Article II, § 22 requires legislative bills and resolutions to be read three times in each house and signed by both presiding officers. The constitutional language quoted in the opinion does not say when the signatures must be added.

In Scarborough, the state Supreme Court called the signatures an essential prerequisite to a statute's existence and said they must be added during the legislative session. The AG treated that timing language as significant guidance while distinguishing it from the question actually decided in the case: whether a court could force the officers to sign after adjournment.

Common questions

What was missing from the five bills?

They had passed third reading in both chambers, been ordered enrolled, and received ratified numbers. The Senate President and House Speaker had not signed them before adjournment.

Did the opinion rule out signing after adjournment with certainty?

No. The AG acknowledged an argument for that result because Scarborough's discussion of signing time was dictum. It nevertheless advised ratification during a legislative session as the prudent course.

Did the AG require the legislature to repeat every earlier step?

The opinion suggested that the bills be ratified during a session. It did not say they had to be reintroduced, read three times again, or re-enrolled.

Citations

• N.C. Const. art. II, § 22 (signing requirement for bills)
• Scarborough v. Robinson, 81 N.C. 409 (1879) (signatures must be affixed during session and before adjournment)

Source

• Landing page: https://ncdoj.gov/opinions/action-necessary-for-a-bill-to-become-law/

Original opinion text

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