Alabama Advisory Opinions August 26, 1998: AGO 1998-208 (August 26, 1998)

AGO 1998-208.

Dear Mayor Farish:

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

Does the population estimate from the Bureau of Census satisfy the requirements of sections 28-2A-1 through 28-2A-4 of the Code of Alabama by establishing that the City of Monroeville has a population of 7000 or more, thereby requiring the city to go forward with a municipal option election for the sale of alcoholic beverages?

Sections 28-2A-1 through 28-2A-4 of the Code of Alabama allow municipalities with a population of 7000 or more to change their status concerning the sale of alcoholic beverages from dry to wet or wet to dry by a municipal option election. The method for determining the population of municipalities is not established by these Code provisions. In an opinion to Honorable B. C. Hornady, Mayor, City of Monroeville, dated June 26, 1985, A. G. No. 85-00404, this Office determined that for purposes of determining population under these Code provisions, a municipality could use the federal decennial census, a special federal census, or a municipal census. A special federal census is authorized pursuant to sections 11-47-92 and 11-47-93. ALA. CODE §§ 11-47-92 and 11-47-93 (1992). A municipality may take its own census under the provisions of sections 11-47-90, -91, -94 and -95. ALA. CODE §§ 11-47-90, 11-47-91, 11-47-94, 11-47-95 (1992).

A few months after the Hornady opinion was issued, the Alabama Supreme Court addressed whether the use of the last federal decennial census to determine population for purposes of sections 28-2A-1 through 28-2A-4 was proper. Alabama Citizens Action Program v. Kennamer , 479 So. 2d 1237 (Ala. 1985). The Court ruled that, in the absence of a designation to the contrary, the use of the last preceding federal decennial census to determine population was proper. Id . at 1242. The Court did not address whether the use of a special federal census or a municipal census would be proper. It is the opinion of this Office that a municipality may use the federal decennial census, a special federal census, or a municipal census to determine population for purposes of sections 28-2A-1 through 28-2A-4 of the Code.

Your request asks whether estimated census figures provided by the Bureau of Census may be used by the city rather than the actual census figures from the last decennial census. In a previous opinion relating to the filling of a vacancy in cities with a population of 12000 or more inhabitants, this Office stated that estimated or projected census figures may not be used to determine population; rather, the actual figures from the official census report must be used. Opinion to Honorable J. David Stout, Mayor, City of Fort Payne, dated November 19, 1997, A. G. No. 98-00037.

For purposes of sections 28-2A-1 through 28-2A-4 of the Code of Alabama, the population of the city may be determined by using the federal decennial census, a special federal census, or a municipal census, not from estimated or projected census figures.

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

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/BFS

F/8.24.98/f