Alabama Advisory Opinions April 13, 2007: AGO 2007-081 (April 13, 2007)

AGO 2007-081.

Dear Mayor Albright:

This opinion of the Attorney General is issued in response to your request on behalf of the City Council of Haleyville.

Are citizens who live in Marion County allowed to vote in an election for the Haleyville School Board?

Your letter of request states that most of the city of Haleyville is located within Winston County, but portions of Marion County have been annexed by the city and are now included in the School District of Haleyville. Act 90-395 governs the election of the city board of education in Haleyville and provides, in part, as follows:

Section 1. The city board of education in Haleyville shall be abolished, effective immediately upon the election of a new city board of education as provided by this act and replaced with the board of education as herein provided. Said board shall have all the powers, duties, rights and immunities otherwise provided by law for city boards of education in the state of Alabama. The Probate Judge of Winston County, Alabama, shall hold an election to elect the initial members of the city board of education.

. . . .

Section 3. All members of the board of education shall be elected from the School District of Haleyville, Winston County, Alabama , and no person shall be a candidate or be permitted to file his statement of candidacy for more than one of such places.

. . . .

Section 11. This act shall be effective and operative only if it shall have been approved by a majority of the qualified electors of the School District of Haleyville in Winston County who vote thereon at a referendum election held for such purpose.

The act expressly limits the pool of voters to electors of the School District of Haleyville in Winston County and does not include electors located in Marion County or any other county. Under the principle of expressio unis est exclusio alterius , a rule of statutory construction, where a statute enumerates certain things on which it is to operate, the statute must be construed as excluding from its effect all things not expressly mentioned. Ex parte T.B. , 698 So. 2d 127, 130 (Ala. 1997); Ex parte Holladay , 466 So. 2d 956, 960 (Ala. 1985); City of Birmingham v. Brown , 241 Ala. 203, 208, 2 So. 2d 305, 309 (1941); Hall v. Blan , 227 Ala. 64, 68, 148 So. 601, 603 (1933). Because the act limits the pool of qualified electors to electors from the Haleyville School District in Winston County, electors from other counties are not qualified to vote. The Legislature could have made electors within the school district, but in other counties, eligible by excluding the phrase "in Winston County" from the act.

The Alabama Supreme Court has held that the word "shall" is mandatory unless it is used in a statutory context where it is plain that the Legislature intended a permissive meaning. Prince v. Hunter , 388 So. 2d 546 (Ala. 1980). See also, Smith v. Michelin North America, Inc., 785 So. 2d 1155 (Ala. Civ. App. 2000). The language of Act 90-395 states that board members shall be elected from the School District of Haleyville, Winston County, and this act shall be effective only if approved by electors of the School District of Haleyville in Winston County. It is apparent from this language that only voters in the School District of Haleyville, in Winston County, are qualified to vote in the election for the Haleyville School Board. Because the Legislature required board members to be elected from the School District of Haleyville, Winston County, further legislative action will be required for voters outside Winston County to be eligible to vote in the election for the Haleyville School Board.

Pursuant to Act 90-395, voters in the School District of Haleyville, in Winston County, are the only electors qualified to vote for the Haleyville School Board. Further legislative action will be required for voters within the School District of Haleyville, but outside of Winston County, to be eligible to vote in the election for the Haleyville School Board.

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

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/NB

233303/102558