Mississippi Advisory Opinions February 01, 2007: No. 2007-00057 (February 1, 2007)

No. 2007-00057.

Dear Mr. Gregory:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

I have been requested by the Okolona Municipal Separate School District to write you relative to the qualifying of a candidate for the office of Trustee of the school district. Pursuant to Section 37-7-203, the Okolona Municipal Separate School District is due to have an election for a trustee outside the municipality in the territory of the Municipal Separate School District. Pursuant to Section 37-7-211, the candidate must qualify by 5:00 p.m. at least 40 days prior to the election. The candidate shall file with the office of the Superintendent of the Municipal Separate School District a petition signed by not less than twenty-five (25) qualified electors of the area represented by the office which he seeks. The statute requires that a candidate make and sign an affidavit stating his qualifications, certifying that all signatures on the petition are the personal signatures of each person whose name appeared on the petition and that each person is a qualified elector.

One candidate has filed a petition and affidavit complying with the statutory requirements, signed by the electors and sworn to and subscribed before a Notary Public by the candidate. A second candidate filed three (3) separate petitions, wherein the electors have signed them. One of these petitions does not state the name of the candidate, and no single petition contains the signatures of the twenty-five (25) qualified electors thereon. I understand that all of these petitions were filed together.

Please note that the petitions are not sworn to before a Notary Public.

The question arises, has the second candidate properly qualified for this office pursuant to Section 37-7-211, and must an election be held if only one candidate has complied with Section 37-7-211?

As stated in your letter, Section 37-7-211 requires that, each candidate file a petition signed by the requisite number of qualified electors of the area represented by the office the candidate seeks, and an "affidavit certifying that all signatures are the personal signatures of each person whose name appears on the petition and that each person is a qualified elector."

That statute further provides:

Unless the petition and affidavit required above shall be filed by 5:00 p.m. not less than forty (40) days prior to the election, the name of the candidate shall not be considered in the election, and votes cast for any person who has failed to qualify shall not be counted in the election.

If after the time for candidates to file the petition and affidavit provided for herein there should be only one (1) person to qualify for the office of trustee, then no election or notice of election shall be necessary and such person shall, if otherwise qualified, be declared elected without opposition.

Black's Law Dictionary, Fifth Edition defines the term "affidavit" as:

A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.

Without commenting on the sufficiency of the petition itself, we are of the opinion that the candidate in question must meet all of the mandatory statutory requirements in order to qualify, including a properly notarized affidavit filed by 5:00 p.m. on the qualifying deadline, as required by the above quoted statute.

In response to the second part of your question, based on the plain language of the above quoted statute, if only one person properly qualifies for the office in question no election or notice of election is necessary and the person properly qualified shall, if otherwise qualified, be declared elected without opposition.

Sincerely,

JIM HOOD,

ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General