Mississippi Advisory Opinions May 07, 2004: AGO 2004-0169 (May 07, 2004)

Advisory Opinion Text

Danny Welch, Esquire

Attorney, Simpson County

Board of Supervisors

Chancery Building

Mendenhall, Mississippi 39114

Re: County's Authority to Spend Funds for Political Party Caucus

Dear Mr. Welch:

Attorney General Jim Hood has received your recent letter on behalf of the Simpson County Board of Supervisors and has assigned it to me for research and reply. You request an official opinion from this office concerning the following two questions:

1. Does the Board of Supervisors have authority to pay rental fees for the use of privately owned facilities designated as county polling places to conduct a Democratic caucus?

In response, Section 23-15-259, MISS. CODE ANN . (1972, as amended), provides, in pertinent part, as follows:

Said boards [of supervisors] are also authorized, by order spread upon the minutes of the board setting forth the cost and source of funds therefor, to purchase improved or unimproved property and to construct, reconstruct, repair, renovate and maintain polling places or to pay to private property owners reasonable rental fees when the property is used as a polling place for a period not to exceed the day immediately preceding the election, the day of the election, and the day immediately following the election and to allow such reasonable sum as may be expended in supplying voting compartments, tables or shelves for use at elections. [Emphasis added.]

The statute concludes by providing that the county may use for polling places, at no cost and upon agreement, facilities owned or leased by the state, county, municipality or school district.

Pursuant to the statute, use of county funds is restricted by place, i.e ., a polling place, by time, i.e ., the day before, the day of, and the day after, and by purpose, i.e ., an election. The provisions of Section 23-15-259 are applicable to county and state primaries, special and general elections.

The question becomes whether a political party caucus is included within the definition of election. A caucus is defined as “a meeting of the legal voters of any political party assembled for the purpose of choosing delegates or for the nomination of candidates for office.” Black's Law Dictionary , Fifth Edition. A caucus to determine individuals to represent a political party in an election is restricted to members of that party and is not a public process. Thus both a primary and a caucus are nominating procedures, i.e ., processes to select candidates to stand for election. However, a primary is open to and for the public while a caucus is not. Hence, public funds may be used to pay for the former, but not the latter. Additionally, a caucus cannot meet the statutory time restrictions of the day before, the day of, and the day after an election.

Therefore, it is the opinion of this office that a board of supervisors does not have the authority to pay rental fees for the use of privately owned facilities designated as county polling places for a political party to conduct a caucus.

2. Does the Board of Supervisors have the responsibility to provide and make available the various county polling places within the county precincts for use in the Democratic caucus?

The boards of supervisors are creatures of the Legislature, and their duties and powers are defined by the Legislature. State v. Board of Supervisors of Grenada County , 141 Miss. 701, 105 So. 541, 546 (1925) . Thus a county has only that authority granted by statute or necessarily implied therefrom. A county is authorized by Section 23-15-259 to provide polling places for primaries, special and general elections. However, under the rule of inclusio unius est exclusio alterius that authority would not extend to political party caucuses. This fundamental rule of construction states that “where a statute enumerates and specifies the subjects or things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned....” Akers v. Johnson's Estate , 236 So.2d 437, 440 (Miss. 1970) .

While the county has the authority to provide polling places for primaries, special and general elections, we find no authority which would require a county to provide or make available county polling places for political party caucuses. Therefore, it is the opinion of this office that the Board of Supervisors does not have the responsibility to provide or make available the various county polling places within the county precincts for use by a political party for a caucus. However, in the event that the Board of Supervisors makes space available in public facilities to other organizations, the Board of Supervisors can make space available on the same basis for conducting caucuses.

If we may be of further service to you, let us know.

Very truly yours,

Jim Hood Attorney General

Charlene R. Pierce Special Assistant Attorney General.