Mississippi Advisory Opinions March 13, 1987: AGO 000007815 (March 13, 1987)

AGO 000007815.

Dear Mrs. Harris:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply. In your request you state:

The Enterprise Consolidated School District has suggested a bond election for March 24, 1987. This district ecompasses approximately the northern 25% of Clarke County and all or part of Ten (10) Precincts. The media announcement of the election stated it would be held with only one (1) box open and that being in the Town of Enterprise.

This office has received numerous inquiries and complaints from citizens of that district concerning the failure to open the normal voting precincts.

This office and certain of our County Election Commissioners are concerned because we have not been informed as to the basis for holding this election with only one ballot box and we are therefore unable to answer our residents.

Please advise us by written opinion as to the authority for the above procedure in light of Mississippi Code Sections 37-59-11 and 37-59- 15 as they now read as well as any other statutes you think are pertinent.

Prior to July 1, 1986, Miss. Code Ann. 37-59-11 (1972) read as follows:

Whenever either a certified copy of a resolution adopted by the board of trustees of a school district, or a petition signed by not less than ten per centum of the qualified electors of a school district, fixing the maximum amount of such bonds and the purpose or purposes, for which they are to be issued, shall be filed with the board of supervisors of the county or the governing authorities of the municipality, as the case may be requesting that an election be called to deter- mine whether or not the bonds of such school district shall be issued for any of the purposes enumerated in section 37-59-3, the board of supervisors of the county or the governing authorities of the municipality, as the case may be, within sixty days after receipt thereof, shall adopt a resolution calling an election to be held within such school district for the purpose of submitting to the qualified electors thereof the question of the issuance of bonds in the amount and for the purpose or purposes as set forth in such resolution or petition. The resolution calling such election shall designate the date upon which the election shall be held and the place or places within such district at which such election shall be held, which place or places may or may not be the school house or school houses in such district. (Emphasis added)

In 1986 the Legislature passed the Uniform School Law, Chapter 492 of the 1986 Laws of Mississippi, wherein it was provided that the mandatory election on the issuance of school bonds would be suspended for one year, and an election would be required only if a petition signed by the requisite number of electors of the school district protesting the issuance of the bonds was filed within the requisite period of time.

Therefore, Miss. Code Ann. 37-59-11 (Supp. 1986) from July 1, 1986, until July 1, 1987, will read as follows:

(1) Before any money shall be borrowed under the provisions of this chapter, the school board of the school district shall adopt a resolution declaring the necessity for borrowing such money, declaring its intention t# issue the negotiable bonds of the school district as evidence of same. The resolution shall also set forth the amount of the indebtedness to be incurred and the purpose or purposes for which the money so borrowed is to be expended, including the approximate cost of the alterations, additions and repairs to be made.

(2) The resolution so adopted by the school board shall be published once each week for three (3) consecutive weeks in at least one (1) newspaper published in the school district involved, with the first publication thereof to be made not less than twenty-one (21) days prior to the date upon which the school board is to take final action upon the question of authorizing the borrowing of said money. If no newspaper is published in such school district, then such notice shall be given by publishing the same for the required time in some newspaper having a general circulation in said school district. If no petition requesting an election is filed prior to such meeting as is hereinafter provided, then the school board shall, at said meeting, by resolution spread upon its minutes, give final approval to the borrowing of said money and shall authorize the issuance of negotiable bonds of the school district by the board of supervisors of the governing authorities of the municipality, as the case may be.

(3) If at any time prior to said meeting a petition signed by twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified electors of the school district involved shall be filed with the school board requesting that an election be called on the question of incurring said indebtedness, then the school board shall adopt a resolution calling an election to be held within such school district upon the question of the incurring of said indebtedness for the purposes and in the amount requested. Such election shall be called and held, and notice thereof shall be given, as provided in Sections 37-59-13 and 37-59-15. (Emphasis added)

The suspension of the election requirement was for only one year and 37-59-11 (Supp. 1986) after July 1, 1987 will read as follows:

(1) Before any money shall be borrowed under the provisions of this chapter, the school board of the school district shall adopt a resolution declaring the necessity for borrowing such money, declaring its intention to borrow such money and to issue the negotiable bonds of the school district as evidence of same, specifying the amount to be so borrowed, and how such indebtedness is to be evidenced. Such resolution shall also set forth the nature and approximate cost of the alterations, additions and repairs to be made, and shall declare in said resolution that no funds are available in the school funds of the district or from any other source with which to make such repairs, alterations, additions, purchases, erections or improvements.

(2) Whenever a resolution is adopted by the school board as provided in subsection (1), or a petition signed by not less than ten percent (10%) of the qualified electors of a school district, fixing the maximum amount of such school bonds and the purpose or purposes for which they are to be issued, the school board shall adopt a resolution calling an election to be held within such school district for the purpose of submitting to the qualified electors thereof the question of the issuance of bonds in the amount and for the purpose or purposes as set forth in such resolution or petition. The resolution calling such election shall designate the date upon which the election shall be held and the place or places within such district at which such election shall be held, which place or places may or may not be the school house or school houses in such district. (Emphasis added)

It is clear from the statutes cited above, that prior to July 1, 1986, and after July 1, 1987, school boards have the express authority to designate the place or places at which such election shall be held. Your request centers upon the version of 37-59-11 which is presently in effect and which does not contain such express authority. Instead, the following language is used:

"Such election shall be called and held, and notice thereof shall be given, as provided in 37-59-13 and 37-59-15. These two sections read as follows:

37-59-13

Where an election is to be called, as provided in section 37-59-11, notice of such election shall be signed by the clerk of the board of supervisors or the clerk of the municipality, as the case may be, and shall be published once a week for at least three consecutive weeks, in at least one newspaper published in such county or municipality. The first publication of such notice shall be made not less than twenty-one days prior to the date fixed for such election, and the last publication shall be made not more than seven days prior to such date. If no newspaper is published in such county or municipality, then such notice shall be given by publishing the same for the required time in some newspaper having a general circulation in such county or municipality, as the case may be, and, in addition, by posting a copy of such notice for at least twenty-one days next preceding such election at three public places in such county or municipality. 37-59-15.

Such election shall be held, as far as is practicable, in the same manner as other elections are held in such county or municipality, as the case may be. At such election, all qualified electors of such county, district, or municipality, as the case may be, may vote. The ballots used at such election shall have printed thereon a brief statement of the amount and the purpose of the proposed bond issue, and the words "FOR THE BOND ISSUE," and "AGAINST THE BOND ISSUE." The voter shall vote by placing a cross (X) or check mark (V) opposite his choice on the proposition.

Reading these statutes in pari materia as we are required to do, we find that the language in 37-59-15 directing that the election be held, as far as practicable, in the same manner as other elections, coexisted with the authority of the school board to designate the places in which the election will be conducted. This was true prior to July 1, 1986, and will be true after July 1, 1987. Therefore it is the opinion of this office that 37-59-13 and 37-59-15 govern the manner in which notice of an election is given and the election itself is conducted.

However, the provision found in 37-59-15 must give way to the express authority of the school board to designate the place in which an election shall be held prior to July 1, 1986, and after July 1, 1987.

Due to the absence of the express authority in the version of 37-59-11 which is presently in effect an ambiguity exists as to where the election should be held. In the opinion of this office, the intent of the legislature in amending 37-59-11 was to suspend, for one year, the mandatory provision that an election be conducted prior to the issuance of school bonds. In this one year interval, it was the intent of the legislature that an election be held on the issuance of school bonds only when an appropriate protest petition is filed.

In our opinion, the legislature did not intend to affect the place or places in which an election, if required, would be held.

Therefore, it is the opinion of this office that the Enterprise Consolidated School District has the authority in its resolution calling for an election, to designate the place or places within such district at which such election shall be held.

We do not decide herein, whether the school board has, in this case, exercised its authority in an reasonable manner.

Such a decision is reserved for a court of competent jurisdiction.

You should be advised also, that the designation of a date for the election and the place or places within such district at which such election shall be conducted are events which must be pre-cleared pursuant to 5 of the Voting Rights Act of 1965, as amended. Such designations by the school board are unenforceable until pre-cleared by the Department of Justice.

If you have any questions or if we may be of further assistance please do not hesitate to contact this office.

Sincerely,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY:

John H. Emfinger Special Assistant Attorney General

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