Mississippi Advisory Opinions May 15, 2015: AGO 2015-00137 (May 15, 2015)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Ralph Sewell

SUBJ: Separation of Powers

SBCD: 271

TEXT: Commissioner Ralph Sewell

Yazoo-Mississippi Delta Levee Board

Post Office Box 52

Silver City, Mississippi 39166

Re: Separation of Powers (Levee Board Commissioner Running for Supervisor)

Dear Commissioner Sewell:

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

Issue Presented

Your letter states:

Currently I serve on the Board of Levee Commissioners for the Yazoo-Mississippi Delta and have filed qualifying papers to run for a seat on the Humphreys County Board of Supervisors. I am requesting an official opinion from your office as to whether or not I must resign as a Commissioner for the Yazoo-Mississippi Levee Board in order to run for the Humphreys County Board of Supervisors.

Response

No. However, if elected, you would automatically vacate the office of levee board commissioner upon being sworn in as county supervisor.

Applicable Law

Article 1, Section 1 of the Mississippi Constitution of 1890 reads as follows:

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.

Article 2, Section 1 of the Mississippi Constitution of 1890 reads as follows:

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.

Section 1 divides the powers of the state government into three distinct departments, the legislative, judicial and executive. Section 2 declares that no person in one department shall exercise any power properly belonging to another department, and that the acceptance of an office in one department shall vacate an office held in another department.

The Mississippi Supreme Court in Haley v. State Ex Rel. Mortimer, District Attorney , 108 Miss. 899 (1915) said:

By Section 170 of article 6 of the Constitution boards of supervisors are made a part of the judicial department of the state.

Article 11 of the Constitution refers to the two most important levee districts, and they are recognized as a part or subdivision of the state government. We think the board of levee commissioners belongs to the executive department, but, whether that be true or not, it is very certain that it does not belong to the judicial department.

Mr. Haley, while holding an office in the judicial department, accepted an office in the executive department, and this “of itself, and at once,” vacated his office as a member of the board of supervisors of Leflore county.

Conclusion

Based on the above, while you are not required to resign in order to be a candidate for county supervisor, it would be a violation of the doctrine of separation of powers to hold the positions of levee board commissioner and county supervisor simultaneously.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.