Mississippi Advisory Opinions July 28, 1983: 19830728 (July 28, 1983)

Advisory Opinion Text

Honorable Lamar Conerly, Jr.

City Attorney of Hazlehurst

Post Office Box 549

Hazlehurst, Mississippi 39083

Dear Mr. Conerly:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply.

You write as City Attorney of Hazlehurst and pose two questions which are stated below with responses:

Question: “Is it possible for an Alderman of the City of Hazlehurst to serve as an election commissioner for the county? He was elected alderman for the ward in which he resides, but he will be appointed election commissioner for the county to fill the unexpired term of an elected commissioner.”

Response: This question requires a reference to the first two sections of the Mississippi Constitution of 1890 which state:

“Section 1. 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.”

“Section 2. 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. ” (Emphasis Supplied)

A person who is an alderman is a municipal officer who belongs to the legislative department of government. Consideration must be given to the nature of the position of a county election commissioner.

Reference is made to Section 23-5-3 of the Mississippi Code of 1972, Annotated (the “Code”), concerning county election commissioners:

“ § 23-5-3 . Election and term of office of county election commissioners—qualification of candidates—authority of board of supervisions—organization and duties of commissioners.

At the general election in 1968, and every four (4) years thereafter, there shall be elected five (5) commissioners of election for each county, whose terms of office shall commence on the first Monday of January following their election and who shall serve for a term of four (4) years. Each of the commissioners, before acting, shall take and subscribe the oath of office prescribed by the constitution and file the same in the office of the clerk of the chancery court, there to remain. While engaged in their duties, the commissioners shall be conservators of the peace in the county, with all the duties and powers of such....” (Emphasis Supplied)

Section 23-5-5 of the Code provides that wherever a vacancy occurs on the county election commission by death, resignation or otherwise, the vacancy shall be filled by the Board of Supervisors (the “Board”), who shall appoint a qualified elector to fill the vacancy for the unexpired term of office . (Emphasis Supplied)

Under sections within Chapter 5 of Title 23 of the Code, these commissioners have among other statutory duties:

Upon notification by the Board to cause registration books to be changed to conform to changes in districts (Section 23-5-11).

To hear appeals from persons denied registration by the county registrar (Sections 23-5-55 through 23-5-67).

To revise registration books preceding elections (Sections 23-5-79 and 23-5-81).

To appoint managers of elections (Section 23-5-99).

To canvass election returns and declare results (Section 23-5-169).

Reference is made to Glover v. City of Columbus , 197 Miss. 467, 19 So.2d 756, 165 A.L.R. 1350 (1944), wherein the court stated at Page 757 concerning the definition of a public officer:

“...[1-3] A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public. The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer. But the fact that his duties concern the public does not, without more, bring him within the provisions of Section 20 and 175 of the Constitution . In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be 'defined by rules prescribed by law' ( Shelby v. Alcorn, 36 Miss. 273, 72 Am.Dec. 169) to be discharged by him in his own right, and not by permission and under the supervision and control of another. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881; McClure v. Whitney, 120 Miss. 350, 82 So. 259.... ”

See also Golding v. Armstrong , 231 Miss. 889, 97 So.2d 379 (1957) .

Considering the foregoing, county election commissioner is a public officer.

Executive power is generally that which transforms the mandate of the law into reality. Legislative power “looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.” Prentis v. Atlantic Coastline Company , 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150, 158 (1958) . “Judicial power investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Id . See also: Fuchs, An Approach to Administrative Law , 18 N.C. L. Rev. 183, 189-93 (1940).

We conclude that a county election commissioner is not a public officer in the legislative department of government but is a public officer in the executive department of government.

Consequently, the acceptance of the office of county election commissioner would result in the vacating of the office of alderman.

Question: “Is it possible for an Alderman of the City of Hazlehurst to serve on the county Welfare Committee, a county position appointed by the Board of Supervisors? He was elected alderman for the ward in which he resides, but he was serving on the welfare board prior to his election as alderman.”

Response: Reference is made to Section 43-1-9 of the Code:

“ § 43-1-9 . County department of public welfare.

There shall be created in each county of the state a county department of public welfare which shall consist of a county board of public welfare, a director of public welfare, and such other personnel as may be necessary for the efficient performance of the duties of the county department. County board. The board of supervisors of each county shall from time to time appoint members to its county board of public welfare which shall be composed of five (5) members, one (1) from each supervisors district. In accordance with the policies, rules and regulations of the state department, county boards shall be responsible for the adoption of the policies of the county department. County boards shall serve in an advisory capacity to the director of public welfare, and shall plan for the utilization and development of all resources available within the county for the promotion of public welfare. The tenure of office of members of such county boards shall be fixed by rules and regulations of the state department. No member of such board shall hold any political office of the state, county, municipality or subdivision thereof. Members of said county board shall be allowed twenty dollars ($20.00) per day for not exceeding two (2) days' service each month....” (Emphasis Supplied)

With kind regards, I am

Very truly yours,

Bill Allain Attorney General