Mississippi Advisory Opinions April 14, 2000: AGO 2000-0181 (April 14, 2000)

Advisory Opinion Text

Frank D. Edens, Esquire

Attorney for City of Flowood

Post Office Box 400

Brandon, Mississippi 39043

Re: Referendum on Ward System

Dear Mr. Edens:

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

“The City of Flowood is considering whether to adopt a ward system for the election of aldermen. Miss. Code Ann. Section 21-3-7 (1972) provides that the aldermen may adopt a ward system in their discretion, or on petition of 20% of the qualified electors, the matter shall be decided by a special election. A question has been raised by the Board about whether the Board has the power to call a special election without a petition of 20% of the qualified electors to allow the public to decide the issue. Therefore, the question is:

May the Mayor and Board call a special election for the purpose of determining whether to adopt a ward system under Code Section 21-3-7 (1972) without a petition from 20% of the qualified electors of the city?

The U.S. District Court in Stewart v. Waller , 404 F.Supp. 206 (1975, N.D. Miss) invalidated Mississippi Code Annotated Section 21-3-7 (1972) (Chapter 537, Laws of 1962) and specifically held that “the pre-1962 statutory law governing aldermanic elections remains in effect as if Section 21-3-7 had never been enacted.” See MS AG Op., Houston (May 29, 1984), copy enclosed.

The pre-1962 statutory law governing aldermanic elections in Mississippi is Mississippi Code Annotated Section 3374-36 (1942) (Chapter 491, Laws of 1950), which provides:

“In all municipalities operating under a code charter and having a population of less than ten thousand, according to the latest available federal census, there shall be five aldermen, which aldermen may be elected from the municipality at large, or in the discretion of the municipal authorities, the municipality may be divided into four wards, with one alderman to be elected from each ward and one from the municipality at large. In all such municipalities having a population of ten thousand, or more, according to the latest available federal census, there shall be seven aldermen, and the municipality shall be divided into six wards with one alderman to be elected from each ward and one from the municipality at large. The municipal authorities may establish as many voting precincts in each ward as may be necessary and desirable. The mayor of the municipality shall be elected from the municipality at large.”

In our opinion addressed to Mr. John Hatcher, dated December 9, 1993 we said that a municipality may conduct a non-binding referendum on issues falling within the city's jurisdiction and on which the legislature is silent regarding methods of determining the will of the electorate, provided the governing authorities determine that appropriation of public monies for such purposes is in the city's best interest. We note that the applicable statutory law quoted above makes no provision for an election on the question of establishing a ward system. Therefore, based on the above, we are of the opinion that the governing authorities of the City of Flowood may order that a non-binding referendum be conducted to determine whether the municipal electorate favors establishing a ward system pursuant to the above quoted statutory provisions, provided said governing authorities determine that the expenditure of public funds to conduct said referendum is in the city's best interest.

Sincerely,