Mississippi Advisory Opinions January 06, 1987: AGO 000007730 (January 6, 1987)

AGO 000007730.

Dear Mrs. Slaughter-Harvey:

Attorney General Edwin Lloyd Pittman has received your request for an opinion from this office and has assigned it to the undersigned for research and reply. In your letter you ask the following:

"On December 29, 1986, Governor Allain issued his `Writ of Election' wherein he fixed January 20, 1987 as the date on which a special election to fill the vacancy in the Mississippi Senate created by the death of Senator Howard Dyer of Senate District 22.

"The writ was issued pursuant to Mississippi Code Annotated 23-5-134 - 201, and -203 (1972).

"At the time the Governor's writ was issued Section 23-5 -134(4) was in effect and provided that candidates may qualify not less than five (5) days prior to the election.

"As you know the U. S. Justice Department has pre- cleared the new Election Code passed by the Mississippi Legislature during the 1986 session.

"Section 23-5-134 was repealed by the newly approved Code.

"Section 23-15-359(6) which is a part of the new Election Code now in effect provides that candidates in elections to fill vacancies in the legislature may qualify not less than ten (10) working days prior to the election. This, by our count, would mean that the deadline to qualify as a candidate in the January 20th election would be Tuesday,

"Since the candidates in this election will be required to qualify with the Secretary of State please advise by way of an official opinion the last day on which candidates may lawfully qualify for the January 20, 1987 special election for Senator for the 22nd Senate District.

"We further request your opinion as to whether the general provisions of the new Election Code will govern the conduct of the election in question or whether the provisions in effect prior to Justice Department pre-clearance of said Code would control."

In response to your inquiry, it appears that since the election in question was properly and lawfully called pursuant to Mississippi Code Annotated 23-5-201 - 203 and -134 (1972), individuals who wished to qualify as candidates in said election acquire the right to qualify not less than five (5) days prior to the election.

The Mississippi Supreme Court in Gully v. Holaday, 145 So. 742, 164 Miss. 718 (1933) said:

Under section 61 of the Constitution, which provides that:

"No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length," a statute amending a former statute supersedes the former, and the provisions thereof not brought forward in the amending statute need not thereafter be observed. Nations v. Lovejoy, 80 Miss. 401, 31 So. 811; Bell v. State, 118 Miss. 140, 79 So. 85. But rights acquired under the original statute are not affected thereby, Power v. Calvert Mtg. Co., 112 Miss. 319, 73 So. 51; Bell v. Union & Planters' Bk. & Tr. Co., 158 Miss. 486, 130 So. 486, unless within constitutional limitations the amending statute expressly, or by necessary implication, so provided. (Emphasis added)

Therefore in response to your first question, it is the opinion of this office that the deadline for qualifying as a candidate for the special election in question would be controlled by Section 23-5-134(4) which provides that candidates may qualify not less than five (5) days prior to the election.

The qualifying deadline for all future elections of this type will, of course, be controlled by Section 23-15-359(6) of the new Election Code which sets the qualifying deadline as "not less than ten (10) working days prior to the election."

In response to your second question, since there appears to be no individual rights at stake and since the actual conduct of the election will not occur until January 20, 1987, it is the opinion of this office that the general provisions for the conduct of the special election in question will be controlled by the new Election Code.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY Catherine Walker Underwood Assistant Attorney General

CWU:mfd