Mississippi Advisory Opinions October 07, 1983: 19831007 (October 07, 1983)

Advisory Opinion Text

Senator Cecil E. Mills

Mississippi State Senate

Post Office Box 1

Clara, Mississippi 39324

Re: Elections - Local Option

Dear Senator Mills:

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

Your letter poses three questions:

QUESTION 1: “In a county local option election held pursuant to Section 67-3-7 to prohibit the sale of beer, if a majority of the electors in the county vote to eliminate the sale of beer, will a subsequent, separate municipal local option election to permit the sale of beer under Section 67-3-9 be possible within any qualified municipality in such county without being subject to the five year limitation established in Section 67-3-7?”

RESPONSE: Mississippi Code Annotated § 67-3-9 (1972) provides in part:

“Any city in this state, having a population of not less than two thousand, five hundred (2, 500) according to the latest federal census, at an election held for the purpose, under the election laws applicable to such city, may either prohibit or permit the sale and the receipt, storage and transportation for the purpose of sale of beer of an alcoholic content of not more than four per centum (4%) by weight. An election to determine whether such sale shall be permitted in cities wherein its sale is prohibited by law shall be ordered by the city council or mayor and board of aldermen or other governing body of such city for such city only, upon the presentation of a petition to such governing board containing the names of twenty per centum (20%) of the duly qualified voters of such city asking for such “election. In like manner, an election to determine whether such sale shall be prohibited in cities wherein its sale is permitted by law shall be ordered by the city council or mayor and board of aldermen or other governing board of such city for such city only, upon the presentation of a petition to such governing board containing the names of twenty per centum (20%) of the duly qualified voters of such city asking for such election. No election on either question shall be held by any one city oftener than once in five years.”

The five (5) year limitation found in Section 67-3-7 pertains only to county-wide local option elections.

Therefore, the governing authorities of a municipality which has a population of not less than 2, 500 must call an election to determine whether to permit the sale of beer within its corporate limits when a petition requesting such election bearing the signatures of twenty percent (20%) of the qualified electors of the municipality is received by said authorities, provided such an election has not been held in the municipality under the provisions of Section 67-3-9 within the last five (5) years.

QUESTION 2: “In a county local option election held pursuant to Section 67-3-7 to either authorize or prohibit the sale of beer, if the majority of county-wide votes tallied prohibit or do not authorize the sale of beer, may beer sales neverthe less be permitted within a municipality in that county if in such county local option election a majority of the electors within that municipality have voted to permit or continue the sale of beer?”

RESPONSE: No. If the majority of those voting in a county-wide local option election vote to prohibit or not to authorize the sale of beer, municipalities within said county are bound by that decision unless a municipality with a population of not less than 2, 500 has held or holds a lawful election pursuant to Section 67-3-9 and the majority of those voting in that election vote[d] to permit the sale of beer in said municipality.

QUESTION 3: “Is there any provision under Chapter 1, Title 67, Mississippi Code of 1972, which would authorize a municipality to have its own local option alcoholic beverage control election notwithstanding any local option election which may be held by the county?”

RESPONSE: We know of no authority for a municipality to hold a local option election concerning the sale of beverages which have an alcoholic content of more than four percent (4%) by weight.

Very truly yours,

Bill Allain Attorney General