Mississippi Advisory Opinions December 04, 1990: AGO 000010161 (December 4, 1990)

AGO 000010161.

Dear Mr. Gore:

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

"RE: Section 23-15-839

Our tax assessor died November 4, 1990. The question has arisen as to the interpretation of the above section and as board attorney I have been asked to obtain an attorney general's opinion.

The problem arises from the wording in this section, which reads in part:

'and if the unexpired term be longer than six (6) months, such appointee shall serve until a successor is elected as hereinafter provided, unless the regular special election day on which the vacancy should be filled occurs in a year in which an election would normally be held for that office as provided by law, in which case the persons so appointed shall serve the unexpired portion of the term.' (emphasis added)

Section 23-15-833 makes the 1st Tuesday after the 1st Monday in November of each year as the regular special election day."

Inasmuch as the regular special election day would not be held prior to 1991 and 1991 is a year in which the election would normally be held for that office, it would appear that the appointee would serve unto January 1, 1992 and the county would save the expense of holding a special election in 1991 for someone to hold office only a month plus (since the person prevailing in the special election could only serve to the end of 1991).

Nevertheless the board would appreciate a formal opinion for its protection."

Section 23-15-839 further provides that:

"Such vacancies shall be filled for the unexpired term by the qualified electors at the next regular special election day occurring more than ninety (90) days after the occurrence of the vacancy." (emphasis added)

In response to your inquiry, it is apparent to this office that since the vacancy occurred too late for it to be filled on the 1990 Special Election Day (November 6), the regular special election day on which the vacancy should be filled would be in 1991 and since the regular election for the office of tax assessor is scheduled for 1991 the person appointed to serve in that office will serve for the remainder of the term.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General

PC:mfd