Mississippi Advisory Opinions June 15, 1988: AGO 000008298 (June 15, 1988)

AGO 000008298.

Dear Mrs. Mosley:

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

The Wayne County Board of Education has requested that the Wayne County Election Commission hold a special election pursuant to authority contained in Section 37-5-19 Miss. Code Annotated (1972, as amended) to fill a vacancy on the board from District 1. The remaining members of the school board are unable to agree upon an individual to be appointed and have certified such disagreement to the election commission.

The school board should like to fill this vacancy as soon as possible by holding the special election.The board has requested that the election be held on the same day of the special election to be held to fill the vacancy on the State Highway Commission (Southern District).

Section 23-15-833 Miss. Code Annotated (1972 as amended) appears to prevent the holding of a special election prior to the first Tuesday after the first Monday in November. Section 37-5-19 Miss. Code Ann. (1972 as amended) appears, however, to provide for a special election prior to November.

The Election Commissioners request your opinion on the authority to schedule a special election on July 23, 1988, to fill the vacancy on the Wayne County Board of Education.

Miss. Code Ann. 37-5-19 (1972) seems to indicate that where the remaining members of the board are unable to agree upon the person to fill the vacancy and this fact is certified to the county election commission and there are more than five months prior to the next general election a special election should be called. However, the statute further specifically states that:

. . .the commission shall hold a special election to fill the vacancy, which said election, notice thereof and ballots shall be controlled by the laws concerning special elections to fill vacancies in county or county district offices. . .

Although at the time this statute was enacted it was possible to call a special election pursuant to this section immediately, pursuant to Miss. Code Ann. 23-15-833 (Supp. 1987), special elections to fill the vacancy in county or county district offices are to be held at the regular special election day on the first Tuesday after the first Monday in November of each year. Therefore, it is the opinion of this office that any special election held pursuant to this section is now required to be held on that date.

Hopefully you will find this responsive to your request. Should you have any questions or if we may be of further assistance, please do not hesitate to contact this office.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY John H. Emfinger Special Assistant Attorney General

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