Alabama Advisory Opinions May 01, 2007: AGO 2007-088 (May 1, 2007)

AGO 2007-088.

Dear Mr. McKinley:

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

In Act 2006-380, does the language "voters voting in the last general election of the municipality" refer to the last general election held to elect state and county officials, or does the quoted language refer to the last general election in the municipality where there were contested municipal offices and citizens of Thomasville voted therein?

You ask for an Attorney General's opinion regarding the meaning of the phrase "the last general election of the municipality" as set out in Act 2006-380. This act is a local act, relating to Clarke County, that regulates liquor sales and allows certain municipalities to determine, by local election, whether alcoholic beverages can be legally sold within the municipality. The act states, in relevant part, as follows:

Section 3. (a) Upon petition of 25 Percent of the number of voters voting in the last general election of the municipality having a population of not less than 4,500 nor more than 5,000 inhabitants according to the 2000 census being filed with the city or town clerk or governing body of the municipality, the governing body shall call a municipal option election for the municipality to determine the sentiment of the people as to whether alcoholic beverages, including draft beer, may be legally sold or distributed in the municipality.

This Office previously addressed the meaning of the phrase "last general election of the municipality" in an opinion to Honorable D. David Stout, Mayor, City of Fort Payne, dated October 5, 1990, A.G. No. 91-00007. In that opinion, this Office stated the following:

Section 28-2A-1 provides the procedures for elections respecting the sale and distribution of alcoholic beverages in municipalities. In § 28-2A-1(b) we find the following language:

"Upon petition of 25 percent of the number of voters voting in the last preceding general election of the municipality being filed . . . [the] governing body must call a municipal or option election. . . ."

. . . .

The term "last preceding general election of the municipality" within the purview of § 28-2A-1(b), Code of Alabama 1975, is the election held on the fourth Tuesday in August.

Stout at 2, 4.

In the Stout opinion, we construed the language in section 28-2A-1 and determined the phrase "last preceding general election of the municipality" refers to the general municipal elections in cities and towns, usually held on the fourth Tuesday in August. Stout at 4. The language used in Act 2006-380 is identical to the language in section 28-2A-1 of the Code but for the word "preceding." "Preceding" means "to go before in order of time." Webster's Third New International Dictionary 1783 (2002). Thus, this word relates to the order of the election, but it does not affect whether it is a municipal election. It is therefore the opinion of this Office that the phrase "last general election of the municipality," found in Act 2006-380, also refers to the general municipal elections in cities and towns, usually held on the fourth Tuesday in August.

The phrase "general election of the municipality" is to be distinguished from the term "general election." The term "general election" refers to the regularly scheduled general election held on the first Tuesday after the first Monday in November to elect the Governor, Lieutenant Governor, and Attorney General as provided in section 17-2-3 of the Code. Stout at 3.

Section 11-46-26 of the Code sets forth the procedure to follow when only one candidate or nominee runs for a municipal office. It states as follows:

In the event only one person has filed a statement of candidacy for an office by 5:00 P.M. on the third Tuesday in July preceding the date set for an election of municipal officers pursuant to subsection (g) of Section 11-46-25, then such person shall for all purposes be deemed elected to such office, any provisions of this article to the contrary notwithstanding.

You have informed this Office that a general municipal election was not held in Thomasville in 2004 because only one person filed a statement of candidacy for each municipal office by the deadline in section 11-46-26 of the Code. Because there was no general municipal election in 2004, the last general municipal election in the city of Thomasville occurred four years earlier, in August 2000. For purposes of Act 2006-380, the last general election for the city of Thomasville was held in August 2000.

CONCLUSION

The phrase "last general election of the municipality," as used in Act 2006-380, refers to the regularly scheduled general municipal election, which for most cities is held on the fourth Tuesday in August, as opposed to the general election for state officials, which is held on the first Tuesday after the first Monday in November. The last general election for the city of Thomasville occurred in August 2000.

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

245466/104389