Mississippi Advisory Opinions December 13, 1983: 19831213 (December 13, 1983)

Advisory Opinion Text

Nat G. Troutt, Esquire

Attorney at Law

210 South Ward Street

Senatobia, Mississippi 38668

Dear Mr. Troutt:

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

You submit the following, to-wit:

“Prior to the first primary in August, 1983, Tate County was sued by certain citizens of the county alleging the unconstitutionality and malapportionment of the then supervisor district lines. Tate County then had a plan for the redistricting of the supervisor lines pending with the Justice Department but same had not been acted upon.

“As a result of the hearing on the preliminary injunction feature of the case, Judge Keady entered an order, on July 29, 1983, allowing the holding of primary general elections for the offices of supervisors and constables of Tate County pursuant to the existing liens (which had been approved in 1973), but providing that persons elected to the offices of supervisor and constable in the 1983 primaries and general elections shall hold terms of office for only two full calendar years beginning January 1, 1984 and expiring December 31, 1985. Such terms of office are subject to earlier termination by order of the court upon the determination that a redistricting plan has been approved by the Attorney General of the United States, etc. A copy of this order is enclosed herewith.

“Our question is whether the limitation of the terms of office to less than four years in any way interferes or impedes or curtails the Board of Supervisors in issuing equipment and road machinery purchase notes pursuant to House Bill 260 of the Regular 1950 Session of the Mississippi Legislature or pursuant to the provisions of Sections 19-9-1 through 19-9-31, Mississippi Code 1972, Annotated. Further, whether the order will in any other manner curtail (which we do not conceive of) the normal and usual operation of the Board of Supervisors under a regular four year term of office.”

Section 252, Mississippi Constitution of 1890, provides:

“The term of office of all elective officers under this Constitution shall be four years, except as otherwise provided herein. A general election for all elective officers shall be held on the Tuesday next after the first Monday of November, A.D. 1895, and every four years thereafter; Provided, The legislature may change the day and date of general elections to any day and date in October, November or December.”

Section 136, Mississippi Constitution of 1890, provides:

“All officers named in this article shall hold their offices during the term for which they were selected, unless removed, and until their successors shall be duly qualified to enter on the discharge of their respective duties.”

Section 102, Mississippi Constitution of 1890, provides:

“All general elections for state and county officers shall commence and be holden every four years, on the first Tuesday after the first Monday in November, until altered by the law; and the electors, in all cases except in cases of treason, felony, and breach of peace, shall be privileged from arrest during their attendance at elections and in going to and returning therefrom.”

Section 25-1-1, Mississippi Code of 1972, provides:

“The term of office of all officers, not otherwise provided for by law, shall be four years and until their successors shall be duly qualified.”

Section 23-5-93, Mississippi Code of 1972, as amended, provides:

“At the election in 1971, and every four (4) years thereafter, there shall be elected a governor, lieutenant governor, secretary of state, auditor of public accounts, state treasurer, attorney general, three (3) public service commissioners, three (3) highway commissioners, commissioner of insurance, commissioner of agriculture and commerce, senators and members of the house of representatives in the legislature, district attorneys for the several districts, clerks of the circuit and chancery courts of the several counties, as well as sheriffs, coroners, assessors, surveyors and members of the boards of supervisors, justice court judges and constables, and all other officers to be elected by the people at the general state election. All such officers shall hold their offices for a term of four (4) years, and until their successors are elected and qualified. The state officers shall be elected in the manner prescribed in Section 140 of the Constitution.”

Section 19-3-7, Mississippi Code 1972, provides:

“The members of the board of supervisors, having given bond and taken the oath of office, shall meet at the courthouse of their county, on the first Monday in January next succeeding the election, and shall organize by electing one of their number to be president, and by electing one of their number to be vice-president, and, being so organized, and attended by the sheriff and clerk, the board may proceed to discharge its duties.”

It appears that the Order of the United States District Court, in the case of William Earl David et al., v. Dale McMaster Hensley et al. , No. DC 83-174-WK-0, does not change the term of office for public officials in the State of Mississippi, as such term is fixed by the Constitution of the State of Mississippi, 1890, and by the statutes of the State of Mississippi. The Order of the Court limits the time that persons elected to the offices of supervisor and constable, within Tate County, at the 1983 primaries and general election and provides that such persons elected shall hold office, two full calendar years beginning January 1, 1984 and expiring December 31, 1985, subject to earlier termination by Order of the Court upon determination that a redistricting plan has been approved by the Attorney General of the United States and is statutorily and constitutionally valid under applicable federal law.

It is therefore the opinion of this office that the Court Order limits the time that the individual board members may hold office, pursuant to the 1983 election, but that the Court Order does not otherwise alter the four year term commencing January 1, 1984, or limit the authority of the board to act to the extent that the board would be lawfully authorized to act, if taking office for the four year term.

Very truly yours,

Bill Allain Attorney General.