Mississippi Advisory Opinions May 09, 1979: 19790509 (May 09, 1979)

Advisory Opinion Text

Honorable John White Valentine, City Attorney—City of Cleveland

Cleveland, Mississippi 38732

Re: Municipal Elections

Dear Mr. Valentine:

Attorney General A. F. Summer has received your letter and has assigned it to me for research and reply.

Attached for convenience of reference is a copy of your letter.

Your letter states that there was a municipal general election in the City of Cleveland on June 7, 1977, wherein six aldermen were elected, and from within a ward. A seventh alderman was elected at large.

One alderman, elected from within a ward, contemplates moving from that ward to another ward from within which an alderman would be elected. You pose two questions:

‘1. What is the last date he can move his residence from one ward to the other and be qualified as a ‘qualified elector’ to file for and become a candidate for the primary election to be held preceding the next general election?'

‘2. If such proposed move is made leaving less than an unexpired term of six months, does the Board of Aldermen continue to function with only five aldermen, there being a vacancy not exceeding six months?’

Reference is made to the ‘Appendix To Title 23’, Page 223, et seq., 1978 Cumulative Supplement to Mississippi Code of 1972, Annotated, Volume 6, entitled ‘Election Law Sections of the Mississippi Code of 1942, Amended or Repealed by Chapters 506 and 508, Laws of 1970, and By Certain Other General Laws'. At this writing, the statutes appearing in this Appendix, with some exceptions not relevant here, are effective election laws of the State of Mississippi.

Section 3152 in the Appendix, now effective, states in part:

‘. . . Municipal primary elections; how held.

Nominations for all municipal officers which are elective shall be made at a primary election, or elections, to be held in the manner prescribed by law. Such primary elections shall be held on the second Tuesday in May preceding the general municipal election and, in the event a second primary shall be necessary, such second primary shall be held on the third Tuesday in May preceding such general municipal election. At such primary election the municipal executive committee shall perform the same duties as are specified by law and performed by members of the county executive committee with regard to state and county primary elections. Each municipal executive committee shall have as many members as there are elective officers of the municipality, and such members of the municipal executive committee of each pplitical party shall be elected in the primary elections held for the nomination of candidates for municipal officers. The names of all persons desiring to be a candidate for the nomination in the primary elections shall be furnished to the municipal executive committee of the party to which such person belongs, at least thirty (30) days prior to the first primary election. The provisions of this section shall govern all municipal primary elections as far as applicable, but the officers to revise and prepare the pool books and ballots, and the managers and other officials of the primary election shall be appointed by the municipal executive committee of the party holding such primary, and the returns of such election shall be made to such municipal executive committee. Vacancies in the executive committee shall be filled by it. . . .' (Emphasis Supplied)

It is understood that Cleveland is not a special or private charter municipality.

We respond to your first question by stating that to qualify to run in the municipal primary election in Cleveland as a candidate from within a ward, the person running must be a qualified elector of that ward. A qualified elector of that ward would be, among other qualifications, a legal resident of that ward for thirty (30) days prior to the date of the first primary. This 30-day residency requirement to qualify as an elector is established by the decision in Ferguson v. Williams , 343 Fed. Supp. 654 (1972) .

Additionally, under Section 3152, supra, the name of the person to be a candidate who is a qualified elector of the ward would be furnished to the party municipal executive committee at least thirty (30) days prior to the first primary election.

In addressing your second question, reference is made to Section 21–15–5 of the Mississippi Code of 1972, Annotated, which states:

‘. . . Appointment to fill vacancy in public office.

When it shall happen that there is any vacancy in a city, town or village office which is elective, the unexpired term of which shall not exceed six months, the same shall be filled by appointment by the governing authority, or remainder of the governing authority, of said city, town or village. The municipal clerk shall certify to the secretary of state the fact of such appointment, and the person or persons so appointed shall be commissioned by the governor.'

So long as there is in office and present at lawfully convened meetings a quorum of aldermen, the Board may continue to function. Five would, of course, be such a quorum and could function pending the appointment of an alderman to fill the vacancy in an office the unexpired term of which shall not exceed six months.

We trust this will be of assistance to you.

With kind regards, I am

Very truly yours,

A.F. Summer Attorney General.

S. E. Birdsong, Jr. Special Assistant Attorney General.