Mississippi Advisory Opinions July 08, 1983: AGO 000008798 (July 8, 1983)

Mississippi Attorney General Opinions

1983.

AGO 000008798.

1983-554

---

Dear Mr. Martin:

Attorney General Bill Allain has received your request for opinion made in behalf of the Warren County Election Commission, for whom you are Attorney, and has referred it to the undersigned for research and reply.

You advise that the new redistricting plan for the office of Member of the County Board of Supervisors and the new voting precincts in Warren County has been approved by the United States Attorney General. You further advise that prior to such approval of the new district lines, a person qualified as a candidate for Constable and that such person lives in what was District 4 under the old plan but that under the new plan said candidate, not having moved his place of residence, now resides in District 3.

You say that the candidate wishes to run in new District 4, although because of the relocation of the boundaries of said District 4 by the new redistricting plan, such candidate does not now reside in District 4. You advise further that it is the opinion of the County Democratic Executive Committee that the name of this candidate is required to be placed upon the ballot for the office of Constable in new District 3,". . . where his place of residence under the new plan is located."

You further advise that you have conferred with Honorable Gerald E. Braddock, who stated to you that the name of the subject candidate is being placed upon the ballot in District 3 on the basis of the opinion of the Attorney General dated June 30, 1983 to Mr. Braddock in which it is stated ". . . that Constables having qualified prior to June 30, would appear on the ballot in the supervisor's district 'in which they actually reside' according to the newly approved plan."

You refer to 171 of the Mississippi Constitution of 1890, as amended by House Concurrent Resolution No. 11, being Chapter 518 of the Laws of 1975, ratified on November 4, 1975 and inserted by the Secretary of State on December 8, 1975, providing for the office of Constable in each county in the manner prescribed by law, and expressing the conclusion that no qualifications are specified or that anyone holding such office is required to be a resident of the county or Supervisor's District in order to be a candidate.

Having made this observation, you request an opinion as to whether or not the candidate's name, to whom you refer, may be placed upon the ballot for the office of Constable in District 4 where he qualified before the new plan was approved and in which district the said candidate no longer resides, or whether such candidate would be required to run in the new District 3 in which he now resides.

It is the opinion of this office that the candidate to whom you refer would be required to have his name placed upon the ballot for the office of Constable in the new District 3 in which he now resides. Old District 4, as a result of the redistricting, no longer exists. Therefore, the candidate no longer resides in District 4 but, in truth and in fact, is a resident of District 3. Having done all required to qualify as a candidate prior to the approval of the new district by the United States Attorney General, the candidate is entitled to have his name placed upon the ballot in the new district in which he resides, although he qualified in the district in existence at the time in which he then resided. The candidate has not moved and remains a resident in the same location. It is merely the configuration and designation which has changed and is applicable to the same land area. Such new designation is of vital legal significance in view of the Constitutional and statutory provisions and Court decisions regarding qualifications to vote and to hold office.

250 of the Mississippi Constitution of 1890 provides, inter alia, "All qualified electors and no others shall be eligible to office, (Emphasis Supplied)

25-1-59, Mississippi Code of 1972, Annotated & Amended, provides, inter alia:

"If any . . . county district . . . officer during the term of his office shall remove out of the state, district, county, or municipality for which he was elected or appointed, such office shall thereby become vacant and the vacancy supplied by law as directed." (Emphasis Supplied)

It is to be seen, therefore, based upon the above cited Constitutional and statutory provisions, that a person is not only required to be a qualified elector to be eligible to hold the office of Constable but that such person must also be a resident of the district over which such office has jurisdiction.

The requirement of both residence and qualification to vote is inseparable in order to fulfill the qualifications to hold the office. It is a legal impossibility to satisfy the requirement of a qualified elector and not the residency requirement, or visa versa. Both requirements must be met to maintain qualifications to hold the office.

The duty rests upon the County Executive Committee to enforce these qualifications at the time of approving the ballot consistent with the facts.

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY: W.D. Coleman Deputy Attorney General

WDC:nm