Mississippi Advisory Opinions February 04, 1992: AGO 000005615 (February 4, 1992)

AGO 000005615.

Dear Mayor Thomas:

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

"I am currently serving as Mayor for the City of Horn Lake. I am in the process of selling my current home and building a new home inside the city of Horn Lake corporate boundaries. There will be a period of time in which I will need to rent a home until my new home is completed. My question is:

'Can I rent a home outside the corporate limits of the city of Horn Lake until my new home is completed without vacating my official position or must I rent inside the corporate limits, please bear in mind that I will be remaining inside DeSoto County.'"

Mississippi Code Annotated Section 25-1-59 (Revised 1991) provides in part:

"If any .... municipal officer during the term of his office shall remove out of the .... municipality for which he was elected or appointed, such office shall thereby become vacant and the vacancy be supplied as by law directed. ..."

The question of whether an official has "removed" out of the jurisdiction for which he was elected or appointed is, of course, one of fact. The municipal election commission has the responsibility to make the factual determination as to whether a qualified elector has abandoned the municipality as his place of residence or whether he is only temporarily away from his residence. If the commission removes an elected official's name from the registration list he would no longer be a registered voter and his office would be vacated. The commission's actions would, of course, be subject to review by the courts. We are enclosing a copy of an opinion addressed to Honorable Neola Hutto, dated July 10, 1991 which sets forth the guidelines for determining residency as set down by the Mississippi Supreme Court. As you will see, the general rule is that domicile, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return. Hubbard v. McKey, 193 So. 2d 129 (1966). However, the findings of the municipal election commission are not conclusive in this matter and would not preclude a legal challenge to your right to continue to hold the office in question.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY:

Phil Carter Special Assistant Attorney General PC:mfd Enclosure