Alabama Advisory Opinions October 19, 2007: AGO 2008-9 (October 19, 2007)

AGO 2008-9.

Dear Representative McMillan:

This opinion of the Attorney General is issued in response to your request.

Does section 8 of Act 2006-609 require an affirmative vote by the majority of those voting in an election or a majority of the qualified electors, both voting and nonvoting, to set the standard for exercising jurisdiction?

Section 8 of Act 2006-609 states, in pertinent part, as follows:

"Section 8. Procedure for Exercising Jurisdic-tion in Each District. The Baldwin County Commis-sion shall not exercise its planning and zoning powers and jurisdiction in any district established hereunder until the majority of the qualified electors of the dis-trict voting in an election shall have voted their desire to come within the planning and zoning authority of the Baldwin County Commission. The election shall be held if 10 percent of the qualified electors in any dis-trict submit a written petition to the county commission expressing a desire to be subject to the planning and zoning jurisdiction of the Baldwin County Commission under authority of this act or upon a resolution of the county commission. . . . Notice of the election shall be published four times during the 30-day period immedi-ately preceding the date of the election in a newspaper of general circulation in Baldwin County. In addition, the county commission shall notify by U.S. mail each elector in a district of the election and the process to obtain additional information. The notification shall state the date of the election and the polling place or places for voting. . . . If a majority of the qualified electors in a district vote in the negative in the elec-tion, then the district shall not be subject to the zon-ing and planning jurisdiction of the Baldwin County Commission , and the qualified electors of the district shall not be eligible to petition for another election until one year from the date of the last election. If a majority of the qualified electors in a district vote in affirmative, then the district shall be subject to the zoning and planning jurisdiction of the Baldwin County Commission hereunder. "

In Ex parte Owens , the Supreme Court interpreted similar language within a section of the Constitution that provided that "no court house or county site shall be removed except by a majority of the qualified electors voting at an election held for such purpose. . . ." 148 Ala. 402, 405, 42 So. 676, 677 (1906). The Court rejected the argument that the language that referred to "a majority of all qualified electors voting" required a majority of all the qualified electors of the county to vote regardless of the number of votes actually cast. Specifically, the Court stated the following:

[T]he contention being that, under said section of the Constitution, it requires a majority of all of the quali-fied electors of said county to vote for the proposition in order to carry it, without regard to the number of votes actually cast. Without dwelling on the improb-ability of the Constitution makers enacting a deter-mination of just how many qualified electors were in a certain county at a given time, with no record of deaths or removals that may have occurred up to the date of the election, we think the language of the section itself is very clear that it is only a majority of those who vote that is required. Whether there be, or not, the distinc-tion contended for between the words "voter" and "elector," it matters not. The removal is by "a majority vote." That of itself, if nothing else was said, would carry with it the idea of a majority of the votes; but it says "a majority vote" of whom? If it means of the qualified electors of the county, the word "voting" should be left out. It cannot mean anything else than that it is, as it states, "of the electors voting at an elec-tion held for such purposes." It cannot be the majority vote "voting"; for that would be absurd. It cannot be the majority voting; for "majority" is an adjective, qualifying "vote." There is nothing else for the word "voting" to qualify, except "electors"; and it is the equivalent of a majority of the electors who vote. We regard this as the plain and reasonable interpretation of the section and it is unnecessary to multiply authorities on this point.

In like measure, this Office has previously interpreted similar language to require that action may not be taken until a referendum has been approved by a majority vote of the qualified electors who voted in an election held for that purpose. See opinion to William M. Branch, Judge of Probate, dated February 3, 1981, A.G. No. 81-00217. Accordingly, it is the opinion of this Office that the language used in section 8 of Act 2006-609 requires an affirmative vote by a majority of the qualified electors voting in that election.

To set the standard for exercising jurisdiction, Section 8 of Act 2006-609 requires an affirmative vote by the majority by qualified electors voting in that election.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Monet Gaines of my staff.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/MMG

320375/110945