Opinion No.

Dr. Joycelyn M. Elders, Director Arkansas State Department of Health 4815 West Markham Little Rock, AR 72205-3867

Dear Dr. Elders:

This is in response to your request for an opinion concerning Act 903 of 1993. This act amended A.C.A. § 20-28-104(a)(1) to increase the annual fee collected by the Department of Health from certain water systems from fifteen cents to not more than twenty-five cents per service connection per month. Act 903 also amended § 20-28-105(b) to allow such water systems to recover the twenty-five cents from customers. Your questions regarding this act are set out below and answered in the order posed:

1. On what date is the Department of Health authorized to begin collecting the annual fee of twenty-five cents per service connection per month?

2. Is the Department of Health authorized to collect an annual fee under Ark. Code Ann. § 20-28-104(a)(1) that is based on service connections after July 1, 1993, and prior to the date in Question 1?

3. How should the Department of Health calculate the first annual fee collected under Act 903 of 1993?

4. Are water systems authorized to assess a direct charge under Ark. Code Ann. § 20-28-105(b)(1) that is based on service connections after July 1, 1993, and prior to the date in Question 1?

With regard to your first question, it is my opinion that the Department of Health is authorized to begin collecting the annual fee of "not more than twenty-five cents per service connection per month," as authorized in Act 903 of 1993, on August 13, 1993.

As you have noted, Act 903 of 1993 does not contain an emergency clause. Acts of the General Assembly with no emergency clause or specified effective date become effective ninety days after adjournment of the session at which they were enacted. Fulkersonv. Refunding Board, 201 Ark. 957, 147 S.W.2d 980 (1940). The reason behind the ninety-day period is that all legislative enactments except those necessary for the immediate preservation of the public peace, health or safety, are subject to the operation of the initiative and referendum amendment (Amendment 7 to the Arkansas Constitution), and they therefore do not go into effect until the expiration of ninety days after final adjournment of the legislature, nor then until approved by the people if the referendum is ordered or invoked. State v. Moore,103 Ark. 48, 145 S.W. 199 (1912).

This office has recently opined that legislation passed in the Seventy-Ninth regular session of the Arkansas General Assembly that did not carry an emergency clause or a specified effective date becomes effective on August 13, 1993. See Op. Att'y Gen. 93-149A.

While Act 903 originally contained an emergency clause, it apparently failed to receive the vote of two-thirds of the members of both houses as required by Amendment 7 to the Arkansas Constitution. In cases where an emergency clause is held invalid, the statute takes effect when it would have become effective without an emergency clause. Beaumont v. Faubus, 239 Ark. 801,394 S.W.2d 478 (1965). Accordingly, the effective date of Act 903 of 1993, and the date on which the Department of Health is authorized to begin collecting the fee authorized by the act, is August 13, 1993,

With regard to your second question, it is my opinion that the answer is "no."

As set out in response to your first question, the effective date of Act 903 of 1993 is August 13, 1993. The fifteen cent fee authorized by A.C.A. § 20-28-104 ceases to be effective July 1, 1993. Accordingly, there is no authorization for a fee for service connections after July 1 and before August 13, 1993 under either Act 903 of 1993 or § 20-28-104.

With regard to your third question, it is my understanding that by "how the Department should calculate the fee collected," the focus of your inquiry is not whether one formula or method of calculation of the fee is preferable to another. Rather, you are referring to when the Department should begin to collect the fee authorized by Act 903 of 1993. It is my opinion that whatever method of calculation the Department uses for collection of the first annual fee under Act 903 of 1993, the collection is authorized to begin on or after August 13, 1993.

With regard to your fourth question, it is my opinion that the answer is also "no."

As set out in response to your second question, the effective date of Act 903 is August 13, 1993 and the authority in §20-28-105(b)(1) for assessment of a direct charge by the water systems on the bills of service connections ceases on July 1, 1993. Accordingly, there is no authority for the water systems to assess a direct charge based on service connections between July 1 and August 13, 1993.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Sherry L. Daves.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh