Mississippi Advisory Opinions June 23, 1983: AGO 000003805 (June 23, 1983)

Mississippi Attorney General Opinions

1983.

AGO 000003805.

1983-

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Dear Mr. Case:

We are pleased to reply to your June 2, l983, inquiry which recites:

In my official capacity as the elected County Surveyor for Rankin County, I hereby request the following opinions relative to Section 73-13-97- Subsection (F), Mississippi Code of 1972, as amended in 1980, which provides that County Surveyors must meet the qualification for registration as a Land Surveyor after January I, 1984 with certain exemptions:

1. Will all provisions of the above section apply to the 1983 election.

2. If a prospective candidate for the Office of County Surveyor is neither an incumbent nor a Registered Land Surveyor in the office for which they seek, at what point in time must such a candidate obtain registration as a Registered Land Surveyor in order to qualify to run in the 1983 election for this office.

3. If an incumbent who is not registered as a Registered Land Surveyor decides not to seek re-election this year, will he still be quali- fied to run for the office of County Surveyor at a subsequent point in time without being registered as a Land Surveyor.

Section 73-13-97, to which you refer, provides, in pertinent part:

Sections 73-13-71 to 73-13-97 shall not be construed to prevent or to affect:

(f) Certain elected or appointed county sur- veyors. A county surveyor as provided for in section 135 of the Mississippi Constitution, and sections 19-27-1 to 19-27-35 implementing the constitutional provision, who holds the office of county surveyor by either election or appointment, shall be exempt, through December 31, 1983, from the provisions of sections 73-13-71 through 73-13-97 insofar as his statutory duties within the boundaries of the county in which he is duly elected or appointed are con- cerned. From and after January 1, 1984, such sur- veyor shall not be exempt from the provisions of sections 73-13-71 through 73-13-97 unless he held the office of county surveyor by either election or appointment on December 31, 1983.

This statute was amended by Chapter 515, Section 8, Laws of 1980, to eliminate the general exemption of county surveyors from the requirements imposed upon registered land surveyors.

Section 19-27-1, the initial statute in the laws pertaining to county surveyors, was also amended through Section 10 of the same 1980 enactment, by the addition of similar language, as follows:

There shall be elected for each county a sur- veyor who shall take and subscribe the oath of office prescribed by the constitution and give bond in the penalty of one thousand dollars ($1,000.00), conditioned for the faithful performance of the duties of his office, with sufficient sureties. The bond shall be filed with the clerk of the board of supervisors.

From and after January 1, 1984, such surveyor shall be a registered land surveyor as provided for in sections 73-13-71 through 73-13-99. However, this requirement shall not apply to any person who was holding the office of county surveyor by either election or appointment on December 31, 1983. (Emphasis added.)

Inasmuch as the statutory amendments cited above were enacted immediately after the 1979 general elections and clearly terminate the "exemption" in question on January 1, 1984, when the next succeeding term of office esentially begins, it is the opinion of this office that the Legislature plainly intended that the new requirements should apply to any person seeking through the 1983 general elections to assume the office of county surveyor in 1984.

In response to your second question, candidates for elective public office must possess the requisite qualifications for that office on the day of the general election therefor. Plunkett v. Miller, 162 Miss. 149, 137 So. 737 (1931). However, at the time the ballot is certified, it must be then and there ascertainable beyond speculation or conjecture that all candidates listed thereon will, in fact, possess the requisite qualifications on the day of the general election. Consequently, it is the opinion of this office that persons who are merely engaged in, but have not successfully concluded, the process of becoming a Registered Land Surveyor (including passage of all required examinations and final action on their applications for licensure) at the time the ballot is certified for the office of county surveyor may not lawfully appear as a candidate thereon.

Finally, it is clear that persons holding the office of county surveyor on December 3l, 1983 and who are not at that time Registered Land Surveyors are not required to successfully obtain licensure to thereafter seek or hold the office of their incumbency. Further, since the amended statutes do not specifically terminate this exemption at any given point in time, the exemption will remain in effect for such incumbents, even if they choose not to seek election in 1983 but decide to run in some future election for the same office they held on December 31, 1983. Continuity of service would not be required. Patterson v. Lee, 218 So.2d 434 (Miss. 1969).

We appreciate your inquiry and trust that our response satisfactorily addresses the issues you have raised.

Sincerely yours,

BILL ALLAIN, ATTORNEY GENERAL

BY: James I. Palmer, Jr. Special Assistant Attorney General

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