
    OPINION OF THE JUSTICES.
    No. 371.
    Supreme Court of Alabama.
    Nov. 23, 1999.
   Members of the House of Representatives

Alabama State House

Montgomery, Alabama 36130

Dear Representatives:

We received House Resolution 38 requesting an advisory opinion of the Justices of the Supreme Court relative to Senate Bill 42 (“S.B. 42”), which has passed the Senate and is pending in the House of Representatives. House Resolution 38 reads as follows:

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional questions that have arisen concerning the pending bill, S.B. 42, a copy of which is attached to this resolution and made a part hereof by reference.
“Senate Bill 42 as it passed the Senate makes an appropriation to a non-state agency, The Sentencing Institute, in the amount of $187,500 for the fiscal year ending September 30, 2000, to be paid from the State General Fund.
“Section 73 of the Constitution of Alabama of 1901 provides that no appropriation shall be made to any charitable or educational institution not under the absolute control of the state, other than normal schools established by law for the professional training of teachers for the public schools of the state, except by a vote of two-thirds of all the members elected to each house. Section 64 of the Constitution of Alabama of 1901 provides that no amendment to bills shall be adopted except by a majority of the house wherein the same is offered, nor unless the amendment with the names of those voting for and against the same shall be entered at length on the journal of the house in which the same is adopted, and no amendment to bills by one house shall be concurred in by the other, unless a vote’ be taken by yeas and nays, and the names of the members voting for and against the same be recorded at length on the journal; and no report of a committee of conference shall be adopted in either house, except on the journal, as herein provided for the adoption of amendments. '
“Senate Bill 42 passed the Senate with 25 affirmative votes. Should Senate Bill 42 pass the House and appropriate funds to The Sentencing Institute in the same manner as the Senate-passed version but changing the appropriation amount then the following questions are asked concerning the amended SB 42:
“(1) Having met the requirements of Section 73 on third' reading in each house, what vote ratio is required by the house of origin to which the amended bill is sent for concurrence?
“(2) What vote ratio is required for either legislative body to adopt a conference committee report on a bill which makes an appropriation to a non-state agency and which received upon its third reading in each body the vote required by Section 73 of the Constitution?”

Based upon a reading of the provisions of Sections 64 and Section 73 of the Alabama Constitution of 1901, opinions of this Court construing those two sections, and other sections of the Constitution relating to vote ratios that are required, we are of the opinion that a two-thirds majority is required by the Constitution — whether the House is voting on an amendment to S.B. 42, whether the Senate is voting on the House amendment to S.B. 42, or whether both houses are voting to adopt a committee report on the Bill.

In answering your questions, we are required to examine the provisions of Section 73 and Section 64 of the Alabama Constitution of 1901, and we now state the reasons that lead us to the conclusion we reach.

As you point out in your request for an advisory opinion, S.B. 42 would make an appropriation from the General Fund to The Sentencing Institute, an entity that is not under the absolute control of the state, and that is not a normal school established by law for the professional training of teachers for the public schools of the state; consequently Section 73 of the Constitution requires a two-thirds vote of the members elected to each house to adopt the bill.

Although you state that S.B. 42 has met the requirements of Section 73 on third reading in each house, you ask: “Should Senate Bill 42 pass the House and appropriate funds to The Sentencing Institute in the same manner as the Senate-passed version but changing the appropriate amount ... what vote ratio is required by the house of origin to which the bill is sent for concurrence?”

We are of the opinion that a two-thirds vote in the Senate, the house of origin, concurring in the amendment made by the House would be required. The provisions of Section 64 would not control. We have discussed an issue similar to the one posed here in a prior opinion of the Justices. See Opinion of the Justices, 232 Ala. 156, 167 So. 327 (1936). In that request for an advisory opinion, the State Senate had noted in its request that a Senate committee had adopted a number of amendments to a House Bill that was then pending in the Senate. In its request, the members of the Senate stated that there was doubt whether a majority or a two-thirds vote was required by the House to concur in the Senate amendments, and that they desired the opinion of the Justices on the issue.

In Opinion of the Justices, No. 48, this Court stated:

“The two-thirds vote required by section 76 of the Constitution for the passage of a bill embodying legislation on a subject not designated in the Governor’s call for a special session applies to the final action in each House on the proposed law. Hence, if H.B. 180 be amended in the Senate, a concurrence by the House would require a two-thirds vote by yeas and nays entered on the journal as provided by section 64 of the Constitution.” . ,

232 Ala. at 157, 167 So. 327.

“If the bill goes to a conference committee, the bill, as reported by that committee, must be passed by a like vote in each House, unless the bill, as reported by the conference committee, is the same bill in all respects as that already passed by one House. In such event, it would only be necessary for the bill, as reported by the conference committee, to be passed by the same two-thirds vote in the other House. Board of Revenue of Jefferson County v. Crow, 141 Ala. 126, 37 So. 469.”

In Opinion of the Justices, 672 So.2d 1290 (Ala.1996), the Justices reached a similar result, when they opined that a three-fifths vote of all members elected to a house was required for each body to adopt a conference committee report if the bill to be enacted was a proposed constitutional amendment.

Although the two opinions of the Justices we cite did not involve the application of Section 64 of the Constitution when Section 73 of the Constitution is implicated, as here, we are of the opinion that the same principle of law applied in those opinions applies here; consequently, a two-thirds vote is required by the house of origin to which the amended bill is sent for concurrence, and a two-thirds vote is required for either legislative body to adopt a conference report on a bill which makes an appropriation to a non-state agency other than a normal school even though the bill received a two-thirds vote upon its third reading in each body.

QUESTIONS ANSWERED.

Respectfully Submitted,

PERRY 0. HOOPER, Sr. Chief Justice

HUGH MADDOX

J. GORMAN HOUSTON, Jr.

RALPH D. COOK

HAROLD SEE

CHAMP LYONS, Jr.

JEAN BROWN

DOUGLAS INGE JOHNSTONE

JOHN H. ENGLAND, Jr. Associate Justices 
      
      . Section 64: “No amendment to bills shall be adopted except by a majority of the house wherein the same is offered, nor unless the amendment with the names of those voting for and against the same shall be entered at length on the journal of the house in which the same is adopted, and no amendment to bills by one house shall be concurred in by the other, unless a vote be taken by yeas and nays, and the names of the members voting for and against the same be recorded at length on the journal; and no report of a committee of conference shall be adopted in either house, except upon a vote taken by yeas and nays, and entered on the journal, as herein provided for the adoption of amendments.?
      Section 73: “No appropriation shall be made to any charitable or educational institution not under the absolute control of the state, other than normal schools established by law for the professional training of teachers for the public schools of the state, except by a vote of two-thirds of all the members elected to each house."
     
      
      . In that case the House Bill was not included in the Governor’s call for an extra session, and for this reason the Constitution required a two-thirds vote for passage of a bill embodying legislation on a subject not designated in the Governor's call for a special session. Whether S.B. 42 was or was not in the Governor’s call does not affect our conclusion.
     