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 the North Carolina Senate and the House during the 1993 session. They were ordered enrolled and even assigned ratified numbers. But before the General Assembly adjourned, no one caught that the President of the Senate and the Speaker of the House had not actually signed them. Jerry Tillett, legal counsel to the Senate President Pro Tempore, asked the Attorney General whether the bills had become law anyway.
Chief Deputy Attorney General Andrew A. Vanore, Jr. concluded that none of them had. Article II, Section 22 of the North Carolina Constitution requires that bills "shall be signed by the presiding officers of both houses," and an 1879 NC Supreme Court decision interpreting nearly identical constitutional language held the signatures must be affixed during the session, before adjournment. The court in Scarborough v. Robinson, 81 N.C. 409 (1879), described the presiding-officer signatures as "an essential pre-requisite to the existence of the statute" and "the finishing and perfecting act of legislation."
The AG noted that Scarborough's direct holding was about whether the presiding officers could be compelled to sign post-adjournment (the court said no, by mandamus). The discussion of whether a post-adjournment signature could itself make a bill law was technically dictum. But because Scarborough was the only NC appellate decision addressing the issue, the AG advised the prudent course was to have the five bills re-ratified in a future session of the General Assembly.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The constitutional text of Article II, Section 22 (signing requirement) has not been substantially changed since 1993, and Scarborough v. Robinson remains the controlling NC authority on the question. Procedural reforms in the General Assembly since 1993, including computerized bill tracking and end-of-session checklists, have made the kind of clerical lapse described here less common. Any modern question about a bill's status should still start with current Article II, Section 22 and any later case law construing the signing requirement.
Common questions
Q: What was actually wrong with the five bills?
A: They had completed every other step of enactment. Both chambers passed each bill on three readings, the enrolling clerks prepared the final text, and the bills were assigned ratified numbers. The only missing step was the actual signing by the presiding officers before adjournment.
Q: Why does the Constitution require the signature?
A: The presiding-officer signature serves as the legislature's attestation that the text being sent to the governor is what both chambers actually passed. The NC Supreme Court in Scarborough described it as the "finishing and perfecting act of legislation," the moment when the enrolled bill becomes the official record of legislative action.
Q: Could a court have ordered the presiding officers to sign after adjournment?
A: No. Scarborough held that mandamus would not lie to compel the signatures after adjournment. The deciding issue in Scarborough was actually that narrower question. The discussion of whether a post-adjournment signature could itself make a bill law was technical dictum, but the AG treated it as the best available guidance.
Q: What could the legislature do to fix the problem?
A: The AG's recommendation was re-ratification: pass the same bill again in a future regular or extra session, this time getting the signatures done before adjournment. Each affected bill would have to be reintroduced, re-read three times in each chamber, re-enrolled, and properly signed.
Q: Does this still matter today?
A: The constitutional requirement still exists. Modern legislative procedure largely catches this kind of oversight before adjournment because of computerized tracking and end-of-session signature checklists. But the underlying rule is the same: an unsigned bill is not law.
Background and statutory framework
Article II, Section 22 of the North Carolina Constitution sets out the process for enacting state 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." The Constitution does not itself say when the presiding officers must sign, only that they must.
Scarborough v. Robinson arose under a substantially identical provision in an earlier NC Constitution. The plaintiff in Scarborough sought a writ of mandamus to compel the Speaker of the House and the President of the Senate to sign a bill that had passed both chambers but had not been signed before adjournment. The NC Supreme Court denied the writ and, in extensive discussion, concluded that the constitutional reference to signing necessarily implied "must be affixed during the session of the General Assembly," not at some later date. The Court reasoned 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."
In the 1993 inquiry, AG Vanore noted that the precise holding of Scarborough was narrower than the dictum on timing. But Scarborough was the only NC appellate authority directly addressing the question. The AG's prudent-course advice tracked what the Scarborough court had said about when signatures must be affixed.
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
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