Mississippi Advisory Opinions May 29, 1984: 19840529 (May 29, 1984)

Advisory Opinion Text

Honorable R. K. Houston

Attorney for Town of Bay Springs

Bay Springs, Mississippi 39422-0307

Re: Elections - Municipal

Dear Mr. Houston:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“The Town of Bay Springs is a code chartered municipality with a population of fewer than 10, 000 persons, presently electing aldermen at large. The Mayor and Board of Aldermen are considering changing the election of aldermen to a ward system.

“I am aware of the rulling in the case of Stewart v. Waller , 404 Fed.Supp. 206, and it appears that the manner of electing aldermen for our town is controlled by § 3374-36 Miss. Code of 1942, inasmuch as § 21-3-7 Miss. Code of 1972 has been struck down by the above decision.

“Applying § 3374-36 to the Town of Bay Springs, '. . . 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. . .'

“There seems to be some question, however, as to whether, under present federal law, a four ward-one at large system of election can be approved, and the purpose of this letter is to request your opinion as to whether the same may now lawfully be accomplished, and whether the division of the town into five wards, electing one alderman from each ward, can now lawfully be accomplished.”

In response to your first question, whether or not a “four ward-one at large” system would or could be approved by the U.S. Justice Department is a question of federal law and policy which this office is unable to answer.

In response to Our second question and as noted in your letter, the U.S. District Court in Stewart v. Waller , 404 F.Supp. 206 (N.D. Miss), invalidated Mississippi Code Annotated § 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 § 21-3-7 had never been enacted.”

As also noted in your letter, the pre-1962 statutory law governing aldermanic elections in Mississippi is Mississippi Code Annotated § 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.”

The above quoted statute gives the governing authorities of municipalities having a population of less than ten thousand (10, 000) the discretionary authority to divide the municipality into four wards with one alderman to be elected from each ward and one from the municipality at large.

We find no statutory authority for a municipality to be divided into five (5) wards. Therefore, it is the opinion of this office that the division of the town of Bay Springs into five (5) wards, electing one alderman from each ward, cannot lawfully be accomplished.

For your information, we are enclosing a copy of an opinion addressed to Mayor W. Laney Funderburk, dated today, which concerns the subject of your inquiry.

Very truly yours,

Edwin Lloyd Pittman, Attorney General