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

Advisory Opinion Text

Mayor W. Laney Funderburk

City of Hernando

190 Commerce Street

Hernando, Mississippi 38632

RE: Elections - Municipal

Dear Mayor Funderburk:

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

Your letter states:

“RE: Request for Attorney General's opinion - Establishment of Wards in Code Charter Municipalities having less than 10, 000 people

“This is a request for-an Attorney General's opinion for and in behalf of the City of Hernando in reference to the above matter.

“Inquiry has been made by the Mayor and Board of Aldermen regarding the establishment of wards in the City of Hernando, a Code Charter Municipality, having a population of approximately 3, 100 inhabitants.

“The City at the present time elects Aldermen on an at large basis. However, the City is interested in looking into the feasibility of the establishment of Wards.

“In reference thereto, your particular attention is called to the following Code section: Mississippi Code Annotated § 21-3-7 the number aldermen and their election provides:

“'In all municipalities 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 authority, the municipality may be divided into four wards, with one alderman to be selected from each ward and one from the municipality at large. On a petition of twenty per cent of the qualified electors of such municipality, the provisions of this section as to whether or not the aldermen shall be elected from wards or from the municipality at large shall be determined by the vote of the majority of such qualified electors of such municipality voting in a special election called for that purpose. All aldermen shall be selected by vote of the entire electorate out of the municipality. Those municipalities which determine to select one alderman from each of the four wards shall select one from the candidates for alderman from each particular ward who shall be a resident of said ward by majority vote of the entire electorate of the municipality...'

“In reference thereto, contained in Annotation of said Code Section is the following case: Stewart v. Waller , 404 F.Supp. 206 (D.C. Miss.), which held Mississippi Code Annotated § 21-3-7 is a purposeful device-conceived and operated to further racial discrimination in the voting process, and is therefore violative of the Fourteen and Fifteen Amendments to the United States Constitution. The statute law of Mississippi relating to aldermanic elections which existed prior to the passage of Code 1972, § 21-3-7, which was modified or repealed by Code 1972, § 21-3-7, is declared to be in full force and effect as if it had never been repealed. Members of the class are restrained from conducting at-large aldermanic elections pursuant to Code 1972, § 21-3-7 or local ordinances implementing this section. “In reference thereto, we would appreciate an Attorney General's opinion regarding the correct procedure to follow, assuming the Board of Aldermen is desirous of implementing wards in the municipality. “Further, this is a request for an Attorney General's opinion, as to whether or not it is mandatory or discretionary on the part of the Mayor and Board of Aldermen of a Code chartered municipality with a population under 10, 000 to establish wards in the election of Municipal Aldermen.”

As noted in your letter, Mississippi Code Annotated § 21-3-7 (1972) (Chapter 537 Laws of 1962) was held to be in violation of the U.S. Constitution and the statutory law relating to aldermanic elections which existed prior to the passage of said Code section was declared to be in full force and effect. Stewart v. Waller , 404 F.Supp. 206 (D.C. Miss.) .

Mississippi Code Annotated § 3374-36 (1942) (Chapter 491, Laws of 1950) governed aldermanic elections prior to the passage of § 21-3-7, supra , and, therefore, is now in full force and effect.

It 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.”

Therefore, assuming the governing authorities of Hernando wish to establish wards for the election of aldermen, plans should be drawn for the division of the city into four wards and submitted to the U.S. Justice Department for approval under the Voting Rights Act of 1965. Such approval is required before said plan may be implemented.

In response to your final question, the establishment of wards is discretionary with the municipal governing authorities as specifically provided in Section 3374-36, supra.

Very truly yours,

Edwin Lloyd Pittman Attorney General.