Mississippi Advisory Opinions December 28, 2009: No. 2009-00671 (December 28, 2009)

No. 2009-00671.

Dear Ms. Vickers:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

You inquire as to whether a special charter provision takes precedence over the provisions of general municipal law. Specifically, you ask the following:

In accordance with MS Code of 1972, as amended, Section 21-8-7(4)(a) states "The council shall consist of five (5) members." Does this code section supercede the original charter, Chapter 360, Section 3 (copy attached) that states "That said inspectors are hereby authorized and required to hold an election in said Town for Mayor, three selectmen and a marshal on the first Monday of March, 1890."

How many selectmen/aldermen are required for the Village of Eden?

Are elections for the Village of Eden to be held on Monday or Tuesday?

What is considered a fiscal year for the Village of Eden?

Barring some evidence in its minutes that it elected to opt out or some later adoption of a different form of government, the Village of Eden is considered a code charter municipality and is governed by the provisions of Mississippi Code Annotated Section 21-3-1 et seq. As a code charter municipality, the number of aldermen is five and the manner in which they are elected is outlined in Section 21-3-7. Section 23-15-173 of the Mississippi Code provides that general elections shall be held on the first Tuesday after the first Monday of June. Section 21-35-3 of the Mississippi Code provides that the municipal fiscal year begins on October 1st and ends on September 30th of each year.

Based upon our review of Chapter 93 of the Code of 1892, it appears that the Village of Eden is a code charter municipality. While it is clear that, in 1890, the Village of Eden operated under a special charter, Chapter 93 of the Code of 1892 specifically provided that existing municipalities would be governed and operated under the code charter form of government, unless the municipality elected to opt out of the code charter form. No documentation was submitted with your request to suggest that the Village of Eden voted to opt out. We would also note that the Village of Eden was categorized as having a code charter classification in the Mississippi Blue Book (1943-1945). Barring some evidence in its minutes that it elected to opt out or some later adoption of a different form of government, it is the position of this office that the Village of Eden is considered a code charter municipality and is governed by the provisions of Mississippi Code Annotated Section 21-3-1 et seq.

As a code charter municipality, the number of aldermen of the Village of Eden is five and the manner in which they are elected is outlined in Section 21-3-7. See Mississippi Code Annotated Section 21-3-7. Section 23-15-173 of the Mississippi Code provides that general elections shall be held on the first Tuesday after the first Monday of June. See Mississippi Code Annotated Section 23-15-173. Section 21-35-3 of the Mississippi Code provides that the municipal fiscal year begins on October 1st and ends on September 30th of each year. See Mississippi Code Annotated Section 21-35-3.

If our office may be of further assistance, please advise.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Leigh Triche Janous

Special Assistant Attorney General