Mississippi Advisory Opinions August 20, 1987: 19870820 (August 20, 1987)

Advisory Opinion Text

Mr. Keith E. May

Operations/Management Analyst

Board on Law Enforcement Officers Standards and Training

301 West Pearl Street

Jackson, Mississippi 39203-3088

Dear Mr. May:

Attorney General Edwin Lloyd Pittman has received your request for an opinion and has assigned it to the undersigned for research and reply. In your request you ask:

... whether an individual who has had his disabilities of a minor removed may be a full-time law enforcement officer, and attend training at one of the Board approved training academies.

Miss.Code.Ann. § 45-6-11(3) (1972, as amended) states in part that the Board “... shall fix ... qualifications for the employment of law enforcement officers, including minimum age ...”. This section also requires that such regulations be “... consistent with other provisions of law”. It is our understanding that the Board has by properly promulgated regulations, set the minimum age for law enforcement officers at twenty-one (21) years of age.

Miss. Code Ann. § 93-19-9 (1972) regarding removal of disability of minority states:

The decree may be for the partial removal of the disability of the minor so as to enable him to do some particular act proposed to be done and specified in the decree; or it may be general, and empower him to do all acts in reference to his property, and making contracts, and suing and being sued, and engaging in any profession or avocation, which he could do if he were twenty-one years of age; and the decree made shall distinctly specify to what extent the disability of the minor is removed, and what character of acts he is empowered to perform notwithstanding his minority, and may impose such restrictions and qualifications as the court may adjudge proper.

In Mississippi State Tax Commission v. Reynolds , 351 So.2d 326, 327 (Miss.1977), the Mississippi Supreme Court stated:

The general rule in the United States is that an agency's rule making power does not extend to the adoption of regulations which are inconsistent with actual statutes.

See also, Buse v. Mississippi Employment Employment Security Commission , 377 So.2d 600 (Miss.1979) .

In Reynolds, supra, the Alcoholic Beverage Control Division (ABC) of the State Tax Commission had promulgated a regulation that required all employees of persons selling alcoholic beverages to be twenty-one (21) years of age. (With some exceptions not relevant here). Reynolds, who was slightly more than nineteen years, five months of age [ 351 So.2d at 328], had obtained a decree from the chancery court pursuant to § 93-19-9 which provided, inter alia, that she “... was empowered to engage ‘in any profession or avocation, which he (she) could do if he (she) were twenty-one years of age.’ ” [ 351 So.2d at 326-327]. Nonetheless, the Tax Commission denied her application to be a cocktail waitress under the authority of the aforementioned regulation. On appeal, the Chancery Court reversed the Tax Commission ruling. The Tax Commission then appealed to the Mississippi Supreme Court which held:

The decree of the chancery court removing Reynolds' disabilities of minority generally must be presumed to have been based upon evidence justifying and supporting it. The chancellor in such a case, that is, where disabilities of minority are removed generally and the minor granted the power and responsibility of contracting and of controlling and performing all acts in respect to his property and of engaging in any occupation as if the minor were, in fact, twenty-one years of age, must unquestionably have found from the evidence that the minor was of such maturity, sound judgment and intelligence that the entry of the decree was justified and proper. There is no magic which endows one with wisdom and discretion on one's twenty-first birthday. Many who are younger are wise, discreet and mature, while others who are older are not, and there may be a few who never will be. On the date of the decree removing her disabilities, Reynolds was slightly more than nineteen years, five months of age. This was about one and a half years beyond the time at which the law had imposed upon her the responsibilities of citizenship. In the eyes of the law she had become of sufficient maturity and judgment to vote in national and state elections at eighteen.

We have concluded that the chancellor reached the right conclusion and that although the ABC has power to adopt regulations, no regulation so adopted may be enforced where its enforcement would be in direct contravention of a clear and unambiguous statute.

[ 351 So.2d at 328].

Since § 45-6-11(3) requires that regulations promulgated by the Board must be “consistent with other provisions of law:, it is the opinion of this office that a decree of a chancery court containing language similar to or of the same import as that described in Reynolds, supra, would allow a person under twenty-one years of age to become a law enforcement officer and attend a Board approved training academy.

We do not intend to imply that the decree of the chancery court must contain specific or ritualistic language, so long as it is clear that the court intends that for all intents and purposes the person is to be empowered to act as if he were twenty-one years of age.

Very truly yours,

Edwin Lloyd Pittman Attorney General.

Donald G. Barlow Special Assistant Attorney General.