Alabama Advisory Opinions February 15, 1979: AGO 79-00098 (February 15, 1979)

Advisory Opinion Text

LEE L. HALE DEPUTY ATTORNEY GENERAL

WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL

WILLIAM M. BEKIJRS, JR. EXECUTIVE ASSISTANT

JANIE NOBLES ADMINISTRATIVE ASSISTANT

Mrs. Barbara Love

Clerk of the Town of Cowarts

Cowarts, Alabama 36321

Municipalities--Elections

No election required where only one candidate qualifies for office. In towns council fills vacancy in office of mayor.

Dear Mrs. Love:

Your opinion request of February 7, 1979 has been received in the Office of the Attorney General. Your request presents the following factual situation:

In August, 1972, a mayor and five councilmen were elected to four year terms by the voters of Cowarts. In June of 1976, public notice was posted by the Town Clerk in accordance with State Law notifying citizens of the upcoming elections and the qualifying deadline for persons wishing to stand election for mayor or councilman. The incumbent mayor and councilmen qualified. No person qualified to oppose any of the incumbents. Consequently, the incumbents, being the only persons to qualify, were declared the winners and no formal election was held.

In October of 1978, the incumbent Mayor resigned his post due to his impending move from Cowarts. The Town Council then appointed the present Mayor to serve out the unexpired term.

You ask if the Mayor and Council of the Town of Cowarts are legally in office. Your question is to be answered in the affirmative.

Code of Alabama 1975 , §11-42-26 provides that in cities of under 300,000 inhabitants having a council form of government, if only one person files a statement of candidacy for an office by 5:00 p.m. on the first Tuesday in July preceding the date set for an election of municipal officers, then such person shall for all purposes be deemed elected to such office. It is, therefore, the opinion of this office that the members of the present Town Council of Cowarts are legally holding office.

Code of Alabama 1975 , §11-43-42(b) provides that in cities of less than 12,000 inhabitants and in towns the city council may fill a vacancy in the office of mayor either from its own membership or from without the membership of the council. Therefore, it is the opinion of this office that the present Mayor of Cowarts is legally holding office.

I do hope that this response fully answers your question. If however, we may be of further service, please do not hesitate to call on us.

Sincerely,

CHARLES A. GRADDICK. Attorney General

CAROL JEAN SMITH Assistant Attorney General