Mississippi Advisory Opinions May 04, 1983: AGO 000003626 (May 4, 1983)

Mississippi Attorney General Opinions

1983.

AGO 000003626.

1983-154

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Dear Mr. Caranna:

Attorney General Bill Allain has received your request for opinion and has referred it to the undersigned for re- search and reply.

You advise, as Attorney for the city of Biloxi, that there is a vacancy in the office of Council member in the city. You further advise that the City of Biloxi is governed by the Mayor-Council form of municipal government as provided by Chapter 8 of Title 21 of the Mississippi Code of 1972, Annotated & Amended, being 21-8-1, et seq.

You also advise that the Council, by Resolution dated April 5, 1983, has filled the vacancy by a temporary appoint- ment and you submit for opinion the following question:

"Should Section 21-8-7(5) of the Mississippi Code of 1972, as amended be read in conjunction with Section 21-11-9 of said Code in the schedule and conduct of an election to fill the unexpired term in the Council of the City of Biloxi, Ward Two?" 21-8-7(5), Supra, being brief, is here quoted for convenient reference:

" 5. Vacancies occurring in the council shall shall be filled by election for the remainder of the unexpired term in the next general elec- tion held not less than sixty (60) days after the occurrence of the vacancy. The council shall fill such vacancies temporarily by appoint- ment." (Emphasis Supplied)

Indispensable to the response to your question is the proper consideration of the provision of 21-8-5(l), Ibid, also a part of the statutes controlling the Mayor-Council form of municipal government. This statute, also being brief, is here quoted for convenient reference:

" (1) All elections held for the adoption of the mayor-council form of government shall be held and conducted in accordance with the general laws for the holding of municipal elections."

The above and foregoing quoted statutory provision constitutes a clear intent of the Mississippi Legislature that the election to determine the question of whether the Mayor-Council form of municipal government is adopted is required to be held in accordance with municipal election laws and not state, state district, county and county di- strict election laws.

It is the opinion of this office that to restrict such intent to the initial election on the adoption of the Mayor-Council form of municipal government and not to elections thereafter would be viola ive of the legislative intent regarding municipal elect ions with respect to Mayor-Council form of government.

It necessarily follows, therefore, that it is the opinion of this office that 21-8-5(l), Supra, and the above stated interpretation thereof is required to be ap- plied in the construction of 21-8-7(5), Supra, and that the "general" election referred to therein is a special election such as contemplated by 21-Il-9, Mississippi Code of 1972, Annotated, controlling the filling of vacancies in municipal elective office.

It is further the opinion of this office that the answer to the question you present must be in the affir- mative and that 21-8-7(5), Supra, must be read in conjunc- tion with 21-11-9, Supra, in the scheduling and conduct of an election to fill the vacancy on the Council of the City of Biloxi, to which you refer.

Honorable Margaret S. Sherry, Councilman, Ward Seven, City of Biloxi, having requested an opinion on the precise question you present, a copy of this opinion is-being furni- shed to her also.

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

W. D. Coleman Deputy Attorney General

WDC : nm cc : Honorable Margaret S. Sherry Post Office Box 4701 Biloxi, Mississippi 39571