Mississippi Advisory Opinions August 26, 1986: 19860826 (August 26, 1986)

Advisory Opinion Text

Pete H. Carrubba, Esquire

City Attorney

City of Long Beach

Post Office Box 929

Long Beach, Mississippi 39560

Dear Mr. Carrubba:

Attorney General Pittman has received your opinion request and has assigned it to me for research and reply. Your letter states:

“The City is a Code Charter municipality operating under an aldermanic form of government presently consisting of a Mayor and seven Aldermen. Prior to the June 1984 general elections, the City was governed by a Mayor a[nd] five aldermen elected at large, its population then being less than 10, 000. With annexation approved by the Supreme Court of Mississippi, July 10, 1981, and the general elections of June 1985, the City is now divided into six (6) wards, and the Governing Authority consists of one (1) each aldermen elected, respectively, by the electorate of each of the wards, one alderman and the Mayor elected by the electorate at large, the population of the City certified by the Federal Bureau of the Census in 1984 as exceeding 10, 000.

“In 1962, when the City had a population less than 10, 000, and not then qualifying under the then present statutes of Mississippi relating to the creation and establishment of ports and harbors, and pursuant to local and private legislation, being House Bill 886 of the Mississippi Legislature of 1962 (a copy of which House Bill 886 is attached for your easy reference), the City, by order spread upon its official minutes, and approved by the Board of Supervisors of Harrison County, Mississippi, by order spread upon its official minutes, created a municipal port commission (the “Long Beach Port Commission”) for the development of its port or harbor facilities under the provisions of said House Bill 886.

“Since its inception to the present time the Long Beach Port Commission has consisted of and now consists of five (5) members, three (3) appointed by the Supervisor of Harrison County Supervisor's District No. 3, wherein the City is located, and two (2) appointed by the Governing Authority of the City.

“The creation, construction, operation, maintenance and expansion of the municipal port and harbor facilities has been and is funded through a one-mill county wide levy by the Board of Supervisors of Harrison County, Mississippi (apportioned among the four municipalities of Harrison County, Biloxi, Gulfport, Long Beach and Pass Christian), the issuance of county-wide general obligation bonds, and income from rentals received by the Long Beach Port Commission under provisions of the House Bill 886. The City does not prepare or confirm the budget of the Long Beach Port Commission which authorizes the expenditure of funds, although warrants for disbursement of funds are signed by the Mayor and City Clerk of the City as provided by the enabling legislation, House Bill 886. Nor does the City provide any funds, or at least has not provided any funds, for the Long Beach Port Commission to maintain the port and harbor facilities. “Prior to June 1985, one of the members of the Long Beach Port Commission was and is a citizen and qualified elector of Ward 1 of the City, nominated as such member by the Supervisors of District 3 of Harrison County, Mississippi, and confirmed by the Board of Supervisors as a whole. This member offered, qualified and was elected as the Ward 1 Alderman of the City, took the oath of office and entered into his duties as the Ward 1 Alderman of the City, while continuing to serve as a member of the Long Beach Port Commission. This elected and serving Alderman of Ward 1 and appointed and serving member of the Long Beach Port Commission feels that the municipal port and harbor facilities are not City property at this time.

QUERY

“1. May the aforesaid elected and serving Alderman of Ward 1 of the City legally hold the office as such alderman and at the same time serve as the Supervisor appointed member of the Long Beach Port Commission?

“2. If the answer to Query No. 1 is negative, does this elected and serving Alderman of Ward 1 of the City have an option to resign either as alderman or as Long Beach Port Commission member?

3. If the answers to both Querys Number 1 and 2 are negative did this elected Alderman of Ward 1 of the City automatically vacate his position as a member of the Long Beach Port Commission by taking the oath of office and entering into his duties as Alderman of Ward 1 of the City?”

Article 1, Section 1 of the Mississippi Constitution of 1890, provides:

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

Article 1, Section 2 of the Mississippi Constitution of 1890, provides:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

Both an alderman of a municipality and a member of the Long Beach Port Commission are “public officers” for the purposes of the Mississippi Constitution of 1890. See Glover v. City of Columbus , 197 Miss. 467, 19 So.2d 756 (1944); Golding v. Armstrong , 231 Miss. 889, 97 So.2d 379 (1957).

Further, the office of alderman is in the legislative department of government. See City of Jackson v. Freeman-Howie, Inc. , 239 Miss. 84, 121 So.2d 120 (1960) . As to a member of the Long Beach Port Commission, it is the opinion of this office that said member is a public officer in the executive department of government. Therefore, serving as an alderman of the City of Long Beach and also serving as a member of the Long Beach Port Commission is a violation of Article 1, Section 2 of the Mississippi Constitution of 1890 .

In response to your second and third questions, the provisions of Article 1, Section 2 of the Constitution, would be controlling. See Haley v. State , 108 Miss. 899, 67 So. 498 (1915).

Very truly yours,

Edwin Lloyd Pittman, Attorney General