Mississippi Advisory Opinions December 21, 1989: 19891221 (December 21, 1989)

Advisory Opinion Text

Mr. Thomas C. Perrone

Director of Administration

Office of the Governor

Post Office Box 139

Jackson, Mississippi 39205

RE: OPINION REQUEST

Dear Mr. Perrone:

Attorney General Mike Moore received your request for an opinion, and instructed me to respond:

You pose the following questions:

1. Does the Governor have the authority to revoke a notary public's commission for malfeasance in office? Does MCA § 25–5–1 have any applicability to the revocability question? If he has that authority, what procedure must be used to revoke the commission?

As you correctly note in your letter, the only statutory provision specifically addressing revocation of notary commissions is found in MCA § 25–33–13, where the governor is authorized to revoke the commission of any notary public for a repeated failure to recite the date on which his or her commission expires.

A notary public is a public official, and as such is subject to the general provisions governing removal from office set forth elsewhere in the laws and Constitution of this state. Article 6, Section 175 of the Mississippi Constitution states, “All public officials, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office....”

Obviously, this constitutional provision requires removal in cases not covered by MCA § 25–5–1, which only requires removal for felony convictions, conviction for tax violations, corruption in office “or peculation therein, ” or gambling or dealing in futures with public money.

Both provisions are mandatory; the convicted official shall be removed under either circumstance. However, removing a corrupt official from office is expressly a judicial function, not an executive one. In neither case is the governor given authority to remove a corrupt notary public on his own initiative, without reference to conviction in a court of competent jurisdiction.

It is our opinion that the governor does not have the authority to revoke a notary public's commission, although that commission will be automatically revoked if the notary is convicted in a court of law for any of the offenses set forth above.

I am enclosing for your review a copy of an opinion issued by this office on July 25, 1961 to the incumbent governor addressing this question, reaching the same conclusion. There has been no change in the pertinent authority since this opinion was issued.

2. Can the Governor waive the requirement for a notary public to be a registered voter because of certain religious beliefs held by the prospective notary?

Section 250 of the Mississippi Constitution says “All qualified electors and no others shall be eligible to office....” Section 241 says that one must be duly registered to vote in order to be a “qualified elector.” By implication then, one must be registered to vote in order to hold office.

The Mississippi Supreme Court has held that failure to comply with the registration requirement cannot be cured by registration after taking office, and has actually removed from office an individual who failed to meet this prerequisite. Roane, ex rel. Tunstall v. Matthews, 21 So. 665 (Miss.1897) . There has been no intervening change in the law since this decision.

We find no authority suggesting that the governor can waive any constitutional prerequisite to holding office, and it is therefore our opinion that the registration requirement cannot be waived.

Sincerely yours,

Mike Moore Attorney General.