Mississippi Advisory Opinions December 16, 1991: AGO 000005532 (December 16, 1991)

AGO 000005532.

Dear Alderman Carr:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. A copy of your letter is attached for reference. You request our reconsideration of an opinion issued to Gilford Dabbs, dated November 16, 1984. A copy of that opinion is also attached for reference. In Dabbs this office stated that a local option referendum pursuant to Mississippi Code Annotated Section 67-3-7 (Revised 1991) in which the majority of voters participating in said referendum voted in favor of allowing the transportation, storage, sale, distribution, etc. of wine and beer would be binding on all municipalities within the county despite the fact that one of said municipalities had previously conducted a referendum pursuant to Section 67-3-9 in which the majority of municipal voters participating therein voted not to allow the transportation, storage, sale, distribution, etc. of wine and beer within the corporate limits of that municipality.

We begin our analysis of this matter by looking at the declared purpose of Chapter 3, Title 67, Mississippi Code Annotated (Revised 1991) which is entitled "Sale of Light Wine, Beer and Other Alcoholic Beverages". Section 67-3-1 states:

"The purpose of this chapter is to legalize the manufacture and sale within this state of light wines and beer of an alcoholic content of not more than four per centum by weight, and to regulate the business of manufacturing and of selling such liquors so as to prevent the illicit manufacture, sale, and consumption of liquors having an alcoholic content of more than four per centum by weight, the manufacture and sale of which it is not the purpose of this chapter to legalize."

Mississippi Code Annotated Section 67-3-5 (Revised) declares as a matter of general law that it is legal to sell, etc. light wine and beer in the State of Mississippi. Section 67-3-5 provides in part:

"It shall be lawful, subject to the provisions set forth in this chapter, in this state to transport, store, sell, distribute, possess, receive, and/or manufacture wine and beer of an alcoholic content of not more than four per centum (4%) by weight, and it is hereby declared that it is the legislative intent that this chapter privileges the lawful sale and manufacture, within this state, of such light wines and beer...."

Section 67-3-7 then gives the electorate of the individual counties the authority to have a referendum which could result in the creation of a local option. The creation of this option in a particular county means that the general law that the sale, etc. of wine and beer is lawful would not be applicable in that county. It provides:

"(1) If any county, at an election for the purpose under the election laws of the state, shall by a majority vote of the duly qualified electors voting in the election determine that the transportation, storage, sale, distribution, receipt and/or manufacture of wine and beer of an alcoholic content of not more than four per centum by weight, shall not be permitted in such county then the same shall not be permitted therein. An election to determine whether such transportation, storage, sale, distribution, receipt and/or manufacture of such beverages shall be excluded from any county in the state, shall on petition of twenty per cent (20%) of the duly qualified electors of such county, be ordered by the board of supervisors thereof, for such county only. No election on the question shall be held in any one county more often than once in five years.

In counties which have elected, or may elect by a majority vote of the duly qualified electors voting in the election, that the transportation, storage, sale, distribution, receipt and/or manufacture of wine or beer of an alcoholic content of not more that four per cent by weight shall not be permitted in said county, and election may be held in the same manner as the election hereinabove provided on the question of whether or not said transportation, storage, sale, distribution, receipt and/or manufacture of said beverages shall be permitted in such county. Such election shall be ordered by the board of supervisors of such county on a petition of twenty per cent (20%) of the duly qualified electors of such county. No election on this question can be ordered more often than once in five years.

(2) Nothing in this section shall make it unlawful to possess beer or wine, as defined herein, in any municipality which has heretofore or which may hereafter vote in an election, pursuant to section 67- 3-9, in which a majority of the qualified electors vote in favor of permitting the sale and the receipt, storage and transportation for the purpose of sale of beer or wine as defined herein."

Mississippi Code Annotated Section 67-3-9 (Revised 1991) authorizes certain municipalities to either stay under the county option or to establish an option separate from that of the county. Section 67-3-9 provides in part:

"Any city in this state, having a population of not less than two thousand five hundred (2,500) according to the latest federal census, at an election held for the purpose, under the election laws applicable to such city, may either prohibit or permit the sale and the receipt, storage and transportation for the purpose of sale of beer of an alcoholic content of not more than four per centum (4%) by weight. An election to determine whether such sale shall be permitted in cities wherein its sale is prohibited by law shall be ordered by the city council or mayor and board of aldermen or other governing body of such city for such city only, upon the presentation of a petition for such city to such governing board containing the names of twenty per centum (20%) of the duly qualified voters of such city asking for such election. In like manner, an election to determine whether such sale shall be prohibited in cities wherein its sale is permitted by law shall be ordered by the city council or mayor and board of aldermen or other governing board of such city for such city only, upon the presentation of a petition to such governing board containing the names of twenty per centum (20%) of the duly qualified voters of such city asking for such election. No election on either question shall be held by any one city oftener than once in five years.

...

All laws or parts of laws in conflict with this section are hereby repealed to the extent of such conflict only, this section being cumulative and supplementary." We begin our response to your inquiry by stating that a countywide referendum pursuant to Section 63-3-7 is to be called "on a petition of twenty per cent (20%) of the duly qualified electors of such county". This obviously includes qualified electors of the county who live within the corporate limits of a municipality within said county.

In an effort to determine what authority the above quoted statutes confer upon the county electorate (which includes those residing within municipal corporate boundaries) and what authority they confer upon the municipal electors, we find it necessary to closely examine the provisions of said statutes and the overall statutory scheme that is set out therein.

The beginning point as previously stated is that, under state law, the sale, distribution, etc. of beer is lawful in all counties. The individual counties are then given the authority to create an option which exempts counties which create this option from the general state law. Once a county establishes this option it is in effect for the entire county including the municipalities. This is evident from the language of Section 67- 3-7 which states that "nothing in this section shall make it unlawful to possess beer or wine, ... in any municipality which has heretofore or which may hereafter vote in an election, pursuant to section 67-3-9, in which a majority of the qualified electors vote in favor of permitting the sale and the receipt, storage and transportation for the purpose of sale of beer or wine as defined herein". We find no similar provision for a situation where the majority voted against permitting such sales. This clearly gives certain municipalities the authority to choose not to be subject to the option created by the county to prohibit such sales, etc. Therefore, once a majority of the qualified electors of a qualified municipality vote to be removed from the "dry" option created by the county in a lawfully called municipal referendum, said municipality will be "wet" and will continue to be "wet" until such time as another lawfully called municipal referendum results in a majority of the municipal voters voting to adopt a municipal option to be "dry" regardless of what may happen in any countywide referendum.

However, when a countywide referendum results in the abolition of the previously created option to be "dry" the municipalities which have been "dry" pursuant to a countywide option would now be "wet" because the option they were under, which made them "dry", no longer exists.

The authority conferred on the electorate of certain municipalities in Section 67-3-9 is to have referenda on two specific questions. The first being to determine whether the sale of beer shall be permitted in cities wherein its sale is prohibited by law. The second being to determine whether the sale of beer shall be prohibited in cities wherein its sale is permitted by law.

On the first question, the sale of beer in municipalities may be prohibited in one of two (2) instances. First, in the municipalities in "dry" counties which have created that option through a countywide referendum and second, in municipalities located in "wet" counties and which have created a municipal option to be "dry" pursuant to Section 67-3-9. In the first instance the qualified electors of a qualifying municipality may force an election and if a majority of the voters vote in favor of legalizing the sale of beer the municipality is thereby removed from the county "dry" option. In the second instance, the qualified electors of a qualifying municipality may elect to establish a municipal "dry" option.

As we understand the situation in Rankin County, up until the recent countywide referendum a county "dry" option was in effect and the municipalities of Flowood and Brandon had previously voted to be removed from that option which allowed the lawful sale of beer in those two municipalities. It is our further understanding that the municipality of Pearl had previously voted "against the legal sale of beer of an alcoholic content of not more than four per cent (4%) by weight". The effect of this vote by the electorate of Pearl was to remain under the county "dry" option. In the recent countywide referendum the qualified electors of Rankin County, including those residing within the corporate limits of the municipalities, voted to abolish the "dry" option. The consequences of that vote on the City of Pearl is that the county "dry" option which that municipality has been under since it was first created no longer exists. Therefore, consistent with what was stated in Dabbs, the City of Pearl is now "wet".

It has been suggested that this Office's position as stated in previous opinions is not consistent in that on the one hand we have said that when a county abolishes its "dry" option the municipalities which have not previously voted to be removed from that option are now "wet" and on the other hand we have said that if a "wet" county should vote to create or recreate a "dry" option, those municipalities which may have previously voted to be removed from the county's "dry" option will continue to be "wet". See Dabbs, supra, and an opinion to Cecil E. Mills, dated October 7, 1983. It remains the opinion of this office that once a municipality votes to come out from under a county "dry" option the re-establishment of such option by the county would have no effect on that municipality.

Stated differently, a municipality can be "dry" in only two (2) instances. One, where the county has created such an option and two, where the municipality has created it own option in a referendum on the question of whether beer sales, etc. will be prohibited where it is now permitted by law. Rankin County no longer has a "dry" option and the City of Pearl has not had a referendum on the question of whether such sales will be prohibited. The previous referenda in the City of Pearl have been on the question of whether beer sales should be permitted where it was then prohibited by law.

After carefully reviewing our prior opinions and the pertinent statutes and cases we find no inconsistencies. Any perceived inconsistencies, could be the result of the statutory provisions which, as previously noted, start with the proposition that the sale of beer is lawful and then authorizes local options to prohibit such sales. The statutory scheme is clearly more favorable towards the sale of beer than it is towards the prohibition of same. The Supreme Court of the United States in rejecting a 14th Amendment challenge to the State of Texas' local option liquor law held in Rippey v. Texas, 193 U.S. 504 (1904) that a state may "...favor prohibition to just such degree as it chooses and to that end may let in a local vote upon the subject as much or as little as it may please". Accordingly, the State of Mississippi is free to permit or limit the sale of beer and light wine to any degree it desires.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By: Giles W. Bryant Special Assistant Attorney General GWB:mfd Enclosures