Mississippi Advisory Opinions September 10, 2004: AGO 2004-0476 (September 10, 2004)

Advisory Opinion Text

Malcolm T. Rogers, Esquire

Attorney for Lawrence County

Board of Supervisors

Post Office Box 688

Monticello, Mississippi 39654

Re: Local Option Petition

Dear Mr. Rogers:

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

In 1991, Lawrence County voted on the local option on Section 67-3-7 of the Miss. Code of 1972 to allow the sale of beer and light wine. At that time the County was dry and remains so as to the sale and distribution of intoxicating liquor.

A petition has been filed with the Board of Supervisors of Lawrence County requesting an election to prohibit the sale of “all intoxicating liquor” in Lawrence County. The Circuit Clerk has certified the number of signatures at 1,610. There are 10,606 registered voters in the County, however, 20% of this figure is 2,121.

Since Lawrence County is “wet” only for beer and light wine, can a referendum to prohibit the sale of “all intoxicating liquor” be placed on the November ballot in light of Section 67-3-7 of the Miss. Code of 1972 ?

A copy of the petition is enclosed for your inspection.

The county board of supervisors must judicially determine the sufficiency of the petition in question. We note that the explanatory heading of the petition in question cites the statutes governing local option elections on alcoholic beverages of more than five percent (5%) of alcohol by weight (commonly referred to as “liquor”) and specifically does not include wine containing five percent (5%) of alcohol by weight (commonly referred to as “light wine”)and beer containing not more than five percent (5%) of alcohol by weight. Also, as noted in your letter, it uses the term “intoxicating liquor.” Whether the explanatory heading is sufficiently clear in asking for a referendum on discontinuing the sale of beer and light wines is a question that must be determined by the board of supervisors.

In any case said board is without authority to call an election on discontinuing the sale of beer and light wines in response to a petition therefor until an adjudication that the petition contains a sufficient number of signatures of qualified electors has been made and entered on the minutes of the board. Simpson County v. Burkett , 178 Miss. 44, 172 So. 329 (Miss. 1937) .

You state in your letter that the circuit clerk has certified that 1,610 registered voters signed the petition and that twenty percent (20%) of the total number of registered voters in the county is 2,121. Based on these facts and the authority cited above, the board of supervisors could not lawfully authorize the placing of a referendum to prohibit the sale of beer and light wine on the November ballot.

Sincerely,

Jim Hood, Attorney General

Phil Carter, Special Assistant Attorney General