Judges: RICHARD P. IEYOUB
Filed Date: 12/14/1995
Status: Precedential
Modified Date: 7/5/2016
Dear Ms. Morris:
A question has been raised concerning the effective date of amendments to the Louisiana Constitution which were recently adopted. The results of the October 21, 1995, election on the propositions were proclaimed by Governor Edwards on November 2, 1995.
Article XIII, Section 1, Paragraph C of the Louisiana Constitution, provides that:
A proposed amendment ". . . shall become part of this constitution effective twenty days after the proclamation . . ." (Emphasis supplied).
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In Evans v. Hamner,
". . . Therefore two full legal days did not elapse between the date on which the preliminary default was entered, March 25, 1939 (sic), and the date on which the judgment by default was confirmed, March 29, 1938 . . ." (24 So.2d 815). (Emphasis supplied).
The court concluded that because Saturday was a half holiday and Sunday was a holiday, the confirmation on Tuesday was premature and therefore it was null. Thus, the decision stands for the proposition that the phrase "after two days" means that two full days must elapse from the day that the preliminary default judgment is entered and, the day that the default is confirmed. (Similar results were reached in Ziblich v.Rouseo
Applying the court's analysis to Article XIII, Section 1, the newly adopted amendments to the Louisiana constitution go into effect when twenty full days have elapsed after the date of promulgation of their adoption. In this instance, November 2, the date of promulgation, is not counted, the period of November 3, through November 22 must have elapsed in order to reach twenty days after the date of promulgation. Thus, the effective date of the constitutional amendments commences at the first instant of November 23, 1995. Article
". . . all laws enacted during an extraordinary session of the legislature shall take effect on the sixtieth day after final adjournment . . ." (Emphasis supplied).
A different result would be reached in determining the effective date of laws the constitution had provided "sixty days after final adjournment", instead of "on the sixtieth day after".
Prior opinions of this office are in conflict. In an opinion contained in The Report and Opinions of the AttorneyGeneral, 1932-1934, page 974, the author concluded that where the governor's proclamation was issued on November 19, 1932, December 10, 1932, was the effective date, which amounts to 20 full days. Contra: 1938-40 p. 471; 1940-42, p. 4026. Opinions 1944-46, p. 344; 1946-48, p. 487, do not give specific dates. A review of the decisions of courts of other states reflects that they are not consistent in their calculation of time when "days after" is used in a statute or contract. (See: Corpus Juris Secundum, Verbo, "Time").
In the case of Garland v. Town of Ville Platte,
The court reasoned that, as a general rule, when the last day of a time period, which exceeds seven days, falls on a Sunday, that day is excluded from the computation, citing Corpus Juris Secundum Verbo, "Time" and Louisiana Supreme Court decisions relative to liberative prescription. The court concluded that the purpose of the 10-day delay was to allow a period for an objection to be filed and a hearing to be conducted on the opposition to the annexation petition. The court held that because the tenth day fell on a holiday, Sunday, the adoption of the ordinance was invalid even though it had been adopted on the eleventh day, Monday, September 27, 1965.
This decision seems questionable when compared with cases involving confirmation of default judgments or execution of judgments, because in Garland the court did not construe the language to mean 10 full days . .
In view of the foregoing, it is our opinion that twenty full days must elapse after the day upon which the governor issues his proclamation before the newly adopted constitutional amendments become a part of the constitution.
The second question posed concerns the effective date of Act 828, Section 5, of which provides:
Section 5. This Act shall take effect and become operative if and when the proposed amendment of Article XII, Section 10 of the Constitution of Louisiana contained in the Act which originated as House Bill 841 of this 1995 Regular Session of the Legislature is adopted at the gubernatorial primary election to be held in 1995 and becomes effective. (Emphasis supplied).
Consistent with our conclusions above, it is the opinion of this office that Act 828, relative to the limits of public liability, became both operative and effective when the amendment to Article XII, Section 10, of the Constitution became effective, the first instant of November 23, 1995.
Finally, we are asked to determine the effective date of Act 1180 relative to forced heirship. Section 5 of that act provides:
Section 5. This Act shall become effective on January 1, 1996, but only if the proposed amendment of Article
XII , Section5 of the Constitution of Louisiana contained in the Act which originated as House Bill No 93 or Senate Bill No. 43 of this 1995 Regular Session of the Legislature is adopted at the gubernatorial primary election to be held in 1995 and becomes effective. (Emphasis supplied).
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This poses a different question from the question relative to Act 828, because Section 5 of Act 1180 purports to delay the effectiveness of Act 1180 until January 1, 1996.
It is the opinion of this office that Article XIII, Section 3, in stating that an act of the legislature adopted in anticipation of the contingency that a proposed constitutional amendment may be ratified by the voters "becomes operative" merely means that the act becomes viable. Article
The Louisiana Legislature has all powers of legislation not denied it by the constitution. Bates v. Edwards,
We therefore conclude that Act 1180 became operative on November 23, 1995, with the effectiveness of the amendment to Article XII, Section 5, however; the effectiveness of Act 1180 is delayed until January 1, 1996.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: KENNETH C. DEJEAN GENERAL COUNSEL
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