Mississippi Advisory Opinions May 24, 2013: AGO 2013-00180 (May 24, 2013)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Mark Baker

SUBJ: Elections

SBCD: 72-A

TEXT: Mark C. Baker, Sr., Esquire

Attorney for City of Brandon

Post Office Box 947

Brandon, Mississippi 39043

Re: Notice Requirements for Referendum on Sale and Receipt, Storage and Transport of Alcoholic Beverages

Dear Mr. Baker:

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

Issue Presented

Your letter states in part:

It is expected that in the near future the governing authorities of the City of Brandon will be presented a petition by 20% or more of the qualified electors requesting an election for the purpose of determining whether the sale and receipt, storage and transport for the purpose of sale, of alcoholic beverages shall be permitted in the City in accordance with MCA Section 67-1-14 (Supp. 2012).

With respect to providing notice of the election, the referenced statute provides that "[t]hirty (30) days' notice shall be given to the qualified electors of such municipality, in the manner prescribed by law."

I have not been able to locate definitively the "manner prescribed by law" with respect to the manner and method of notice, publication, etc., and request your opinion in this respect.

Response

We are of the opinion that giving the thirty (30) day notice containing a statement of the question to be voted on at the referendum in the "manner prescribed by law" means that the publication should be made in the usual and ordinary way, that is, by publication in a newspaper following the publication requirements and procedures set forth in Mississippi Code Section 13-3-31 (Revised 2012). The statutory notice provisions of municipal special elections contained in Section 23-15-859 are not applicable to referenda.

Applicable Law and Discussion

Section 67-1-14 requires the governing authorities of certain municipalities to order a referendum on whether the sale and possession shall be permitted in their municipality upon the presentation of a petition containing the names of at least twenty percent (20%) of the duly qualified electors of such municipality. It provides in part:

(2)(a) Any municipality in this state having a population of not less than five thousand (5, 000) according to the latest federal census and which is located in a county which has voted against coming out from under the dry law, or any municipality that is a county seat and which is located in a county which has voted against coming out from under the dry law, may, at an election held for the purpose under the election laws applicable to such municipality, either prohibit or permit, except as otherwise provided under Section 67-9-1, the sale, and the receipt, storage and transportation for the purpose of sale, of alcoholic beverages. An election to determine whether such sale and possession shall be permitted in municipalities wherein its sale and possession is prohibited by law shall be ordered by the municipal governing authorities upon the presentation of a petition to such governing authorities containing the names of at least twenty percent (20%) of the duly qualified voters of such municipality asking for such election. In like manner, an election to determine whether such sale and possession shall be prohibited in municipalities wherein its sale is permitted by law shall be ordered by the municipal governing authorities upon the presentation of a petition to such governing authorities containing the names of at least twenty percent (20%) of the duly qualified voters of such municipality asking for such election. No election on either question shall be held by any one (1) municipality more often than once in two (2) years.

Thirty (30) days' notice shall be given to the qualified electors of such municipality, in the manner prescribed by law, upon the question of either permitting or prohibiting such sale and possession, such notice to contain a statement of the question to be voted on at the election. The ballots to be used in the election shall have the following words printed thereon: "For the legal sale of alcoholic liquors" and the words "Against the legal sale of alcoholic liquors" next below. In marking his ballot the voter shall make a cross (X) opposite the words of his choice. (Emphasis added)

The Mississippi Supreme Court in Henry v. Board of Sup'rs of Newton County , 34 So.2d 232 (Miss. 1948) cited the maxim, Optima est legis interpres consuetudo (Custom is the best interpreter of the law)', 46 C.J. p. 1122, 50 Am.Jur. p. 309 and rejected the argument that the publication requirements contained in the statute that governs the filling of vacancies in county and county district offices should apply to a referendum on the sale of wine and beer. The Court said:

Section 10208, Code 1942, provides that the elections thereunder shall be held 'under the election laws of the state, ' and under Section 3018 thereof, thirty days' notice of the election must be given to the qualified voters. Simpson County v. Burkett, 178 Miss. 44, 172 So. 329. The statute, however, is silent as to how the publication of the notice should be made. Counsel for the appellant says that this being true, the publication should be in accord with that required under a statute analogous to this one which, he says, is Section 3294, Code of 1942, [now Section 23-15-835] which deals with special elections to fill vacancies in offices. However, we are of the opinion that the statute contemplates that the publication of the notice of the election should be made in the usual and ordinary way that notice of county-wide matters are usually given, that is, by publication in a newspaper; and this has heretofore been the custom in giving notice of such elections. (Emphasis added)

It has been suggested that the notice of a referendum pursuant to Section 67-1-14 must be published in accordance with the provisions of Section 23-15-859. However, like Section 23-15-835 that was addressed in Henry, Section 23-15-859 is a part of Article 25, Chapter 15, Title 23 of the Mississippi Code, which is titled "Vacancies in Office." Therefore, we are of the opinion that the publication provisions of Section 23-15-859 are not applicable to referenda.

Prior to the enactment of Section 67-1-14 we opined that thirty (30) days notice of a county referendum should be given by publication in a newspaper having a general circulation within the county. MS AG Op., Nunnery (October 1, 1987). There was no mention of Section 23-15-859.

In Nunnery we said:

In Simpson v. Burkett , 178 Miss. 44, 172 So. 329 (1937), the Mississippi Supreme Court held that where a statute provides for a matter to be submitted to the voters of the entire county but is silent as to the notice necessary to be given, one must apply such election laws as bear the closest analogy to the election provided for under the statute. In that case the court applied what is now codified as Miss. Code Ann. § 19-3-55 (1972) to a referendum on the sale of beer and light wines within the county.

Accordingly thirty (30) days notice of the election should be given by publication in a newspaper having a general circulation within the county.

More recently, we did respond to a specific question of whether proposed publications of notice complied with the requirements of Sections 67-1-6 and 23-15-859. MS AG Op., Bobo (July, 1, 2011). However, we did not address the applicability of 23-15-859 to referenda.

Conclusion

When a statute requires that notice be given to the public that a referendum will be held within a municipality on a certain date but does not specify the manner in which the notice is to be given, such notice is to be given in the usual and ordinary manner, which is by publication in a newspaper having a general circulation within the municipality in accordance with the publication requirements and procedures set forth in Section 13-3-31. The provisions of Section 23-15-859 are not applicable to referenda.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General