Alabama Advisory Opinions September 01, 1989: AGO 89-00421 (September 01, 1989)

Advisory Opinion Text

Honorable William H. Oswalt

Probate Judge

Fayette County Courthouse

Fayette, AL 35555

Elections — Tax Assessors Probate Judges

Probate Judge of Fayette County has no authority to order a special election concerning the adoption of Act 89-754, establishing office of Revenue Commissioner in Fayette County.

Only under circumstances enumerated in §17-18-1, Code of Alabama 1315., may the Governor order a special election.

Dear Judge Oswalt:

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

QUESTION 1

Do I, as Probate Judge, have the authority to call a special referendum election, giving notice thereof, and submitting the proposition as provided in [Act 89-754]?

FACTS AND ANALYSIS

Act No. 89-754 was approved by the Governor on May 11, 1989. This local act, applying only to Fayette County, creates the office of County Revenue Commissioner, provides for his election, and abolishes the offices of Tax Assessor and Tax Collector. The Act will not become operative until it has been approved by the qualified electors of Fayette County voting at a referendum election held for such purpose. Such election is required to be held on the same day as the next special, general, or primary election held in the county next following final passage of the Act.

The next special, general, or primary election to be held in Fayette County will be the primary on the first Tuesday in June 1990. At that election, nominees for the office of Tax Collector and Tax Assessor will be selected. To conduct a referendum concerning the abolition of such offices at the same time as the primary election for such offices may be somewhat confusing. However, I know of no statutory authority which grants you the authority to call a special referendum election prior to June 1990. Act No. 89-754 specifically states that the election to determine its adoption "shall be held on the same day as the next special, general or primary election held in Fayette County next following final passage of this Act."

CONCLUSION

The Probate Judge of Fayette County has no authority to call a special referendum election regarding the adoption of Act No. 89-754.

QUESTION 2

Does the Governor or any other officer have the authority to call a special referendum election regarding the adoption of Act 89-754?

FACTS AND ANALYSTS

Neither the Governor nor any other officer has the authority to call a special referendum election regarding the adoption of Act 89-754. Section 17-18-1, Code of Alabama 1975, lists the circumstances under which the Governor may order a special election. Section 17-18-1(4) provides that the Governor may order a special election when any vacancy occurs in any state or county office filled by election of the people not otherwise provided for by the Constitution or laws of this State. Under §17-2-1, Tax Assessors and Tax Collectors are required to be elected by the people. Therefore, in the event that a vacancy occurs in the office of Tax Assessor or Tax Collector, the Governor is empowered to order a special election by §17-18-1(4).

CONCLUSION

Neither the Governor nor any other officer has the authority to order a special referendum election regarding the adoption of Act 89-754. However, in the event a vacancy occurs in either the office of Tax Assessor or Tax Collector to fill said office, at which time an election regarding the adoption of Act 89-754 may also be held, the Governor may order a special election.

QUESTION 3

In the event of a vacancy in the office of the Tax Assessor or Tax Collector, prior to the expiration of the term of office of either officer, do I, as Probate Judge, have the authority to call a special referendum election under the Act?

FACTS AND ANALYSIS

Section 17-18-3, Code of Alabama 1975 , provides that special elections are to be ordered by the Governor. Therefore, you, as Probate Judge, have no authority to call a special election.

CONCLUSION

The Probate Judge of Fayette County has no authority to order a special election.

Sincerely,

DON SIEGELMAN Attorney General.

RON BOWDEN, Assistant Attorney General