Alabama Advisory Opinions March 06, 1997: AGO 1997-124 (March 6, 1997)

AGO 1997-124.

Dear Judge Cooley:

This opinion is issued in response to your request for an opinion from the Attorney General.

Please render an opinion on whom a Probate Judge should bill for the 5 cent a name for the preparation of preparing and certifying a voter list, Code of Alabama 1975, § 17-4-138, for the following elections:

1. Incorporation of a new municipality.

2. First mayoral and council election of a newly incorporated municipality.

3. Annexation to an existing municipality.

Code of Alabama 1975, § 17-4-138 provides in pertinent part:

"The judge of probate may employ such assistants and clerical help as may be necessary to complete and properly prepare the list of qualified electors which the judge of probate is required to furnish the election inspectors. The judge of probate shall receive or such assistants shall be paid out of the county treasury by warrants, drawn by the county commission on certificate of the probate judge, accompanied by the certificates of the person being paid, showing the amount is due under the provisions of this chapter, but the entire amount spent for the preparation of such lists shall not exceed a sum equal to the amount obtained by multiplying the number of names on said list by $.05 for the preparation of such list. . . ."

Incorporation of new municipalities is provided for at Code , §§ 11-41-1, et seq . After application to the probate judge by petition signed by the required number of residents, the probate judge orders an election to be held within the limits of the proposed municipality. Section 11-41-1, § 11-41-2. Such elections are to be conducted under the same sanction and penalties as general election laws as stated in § 11-41-3.

If the voters vote in favor of incorporation, after making an order of incorporation, the probate judge orders an election to elect a mayor and councilmen for the newly incorporated city. Section 11-41-5. It is stated in § 11-41-6:

"The judge shall make a record of the proceedings in the matter of such incorporation and election of officers and file in the office of the secretary of state a certified copy of the entry showing the result of the elections preceding. The costs of all the aforesaid proceedings shall be paid by the town or city; but, if no judgment is entered establishing the town or city, they shall be paid by the petitioners, and judgment shall be entered dismissing such proceedings."

According to this provision, the costs of the election for incorporation and for election of officials of the new city or town is paid by the town or city, or if there is not a favorable vote in favor of incorporation, the costs of the incorporation proceedings are paid by the petitioners. In a regular city election the poll list is prepared by the city through contracts between the city and county and its board of registrars and is paid for by the municipality. Code , § 11-46-4. In the case at hand, there is no municipality at the inception to contract with the county and board of registrars for preparation of a poll list. Therefore, the probate judge is to prepare the poll list as authorized by § 17-4-138 and the city or town incorporating, or the petitioners, as the case may be, are to pay the probate judge for preparation of the voter list.

Regarding annexations, Code , §§ 11-42-1, et seq ., provides generally for annexation by election, and Code , § 11-42-40, et seq ., provides for annexation by election in cities of 25,000 or more. Section 11-42-2(5) and § 11-42-48 provide that general election laws are to be applied in these elections. It is stated at § 11-42-2(8) and § 11-42-53 that the costs of the elections to annex territory are to be paid by the city at whose instance the election is held. Thus, in annexation elections the city or town at whose instance the annexation is held is to pay the probate judge for preparing the voter list for such election.

For an election to incorporate a city or town, and for the election of officials in the new city or town, the probate judge should bill that city or town for preparation of a voter list for those elections. If the election for incorporation has a negative vote, the petitioners for incorporation should be billed. In annexation elections, the city or town at whose instance the election is held is to be billed by the probate judge for preparation of the voter list.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact James R. Solomon, Jr., of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/LKO/jho

C2.97/OP