Mississippi Advisory Opinions May 24, 1989: 19890524 (May 24, 1989)

Advisory Opinion Text

William H. Ward

Board Attorney

P.O. Drawer 59

Starkville, MS 39759

Re: Residency Requirement for Deputy Chancery Clerk

Dear Mr. Ward:

Attorney General Mike Moore has received your letter and has assigned it to me for reply. In your letter you state:

The chancery clerk has asked that I request your opinion on the following matter.

A deputy chancery clerk with a number of years tenure is being married to a resident of Lowndes County.

The continued employment would serve the interest of the clerk and the deputy clerk and the deputy intends to remain a qualified elector of Oktibbeha County and to commute to work from Columbus.

Section 9–5–133, Mississippi Code 1972, states:

“The clerk of the chancery court shall have power, with the approbation of the court, or of the judge in vacation, to appoint one or more deputies, who shall take the oath of office and who thereupon shall have power to do and perform 11 acts and duties which their principal may lawfully do; such approval, when given by the judge in vacation, shall be in writing and shall be entered on the minutes of the court at the next term.”

If the deputy remains a registered voter, participating in elections and manifests an intent to remain a qualified elector of Oktibbeha County, would the continued appointment of the deputy remain valid?

It is true that the Chancery Clerk must be an elector of the County. Section 250 of the Mississippi Constitution of 1890 prescribes that an officer be an elector of the county. However, the position of Deputy Chancery Clerk is not an office but is an employment position. State v. Christmas, 126 Miss. 358, 88 So. 881 (1921) and Golding v. Armstrong, 231 Miss. 889, 97 So.2d 378 (1957) . We are not aware of any statutory requirement that a county employee be an elector of the county for which he works.

See attached opinion to Wyatt Collins, dated February 3, 1983, which is in accord on the issue of deputy city clerks.

Very truly yours,

Mike Moore, Attorney General.