Mississippi Advisory Opinions December 08, 1989: 19891208 (December 08, 1989)

Advisory Opinion Text

J. Robertshaw, Esquire

Attorney for Leland Consolidated School District

Post Office Drawer 1498

Greenville, Mississippi 38702–1498

Dear Mr. Robertshaw:

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

“As attorney for the above school district, we request an opinion on the following state of facts:

§ 37–7–207, Mississippi Code of 1972, provides in relevant part:

On the First Tuesday after the first Monday in November, in any year in which any consolidated school district shall elect to utilize the authority to create single member election districts, an election shall be held in each such school district in this state for the purpose of electing the board of trustees of such district. At said election the member from District 1 shall be elected for a term of one (1) year, the member from District 2 shall be elected for a term of two (2) years, ... [Emphasis added.]

As is true in all consolidated school districts, the term of one member will expire on the first Monday in January, 1990, another in 1991, and so on through 1994.

Trustee A asks, we think quite reasonably, how can they remove me from an office to which I was elected for a term expiring on the first Monday in January of 1994 (or whatever year)?

Our preliminary investigation turns up Lizano v. Pass Christian, 96 Miss. 640, 50 So. 981 (1910), in which Justice Mayes, construing § 175, Mississippi Constitution of 1890, held:

But it is argued that the decision in those cases only applied to constitutional offices, and, since the city marshall is not a constitutional officer, those cases have no application. We do not think there is anything in this contention. Section 175 applies to ‘all public officers, ’ and the city marshall is certainly a ‘public officer’, within the meaning of the constitution. It should be a serious thing to remove from office, before the expiration of his term, any officer whom the people have selected to govern them. It was designed by the constitution to make it a serious thing. [Emphasis added]

This case appears to still be the law. McMullan v. State, 298 So.2d 708 (Miss.1974) .

We note that ‘redistricting’ in the cases of state legislators, Congressmen, etc. does not affect the terms to which the individuals were elected. We invite attention to § 213–A, Mississippi Constitution of 1890, dealing with the Board of Trustees of State Institutions of Higher Learning, provides in a somewhat similar situation,

The members of the board of trustees as constituted at the time this amendment shall be inserted in the Constitution as a part thereof shall continue to hold office until their respective terms expire ...

We will appreciate your views on this problem. It appears to us that if a trustee whose term has not expired is required to stand for re-election, then the provisions of § 37–7–207 necessarily ‘removes' that trustee from office.” We preface our response to your inquiry by stating that this office must assume the constitutionality of Mississippi Code Annotated § 37–7–207 (Supp.1989) since only a court of competent jurisdiction can declare a statute unconstitutional.

As stated in you letter this office has previously opined that the creation of single-member election districts for trustees of consolidated school districts is mandatory. Please see the enclosed copy of an opinion addressed to Mr. J.O. Nicholson, dated March 17, 1989. We pointed out in Nicholson that the selection of trustees from single-member election districts in now the only method of election available for trustees of consolidated school districts. This, in our opinion, necessarily means that the current at-large offices of trustee will be abolished upon the holding of the new elections mandated by section 37–7–207 . Therefore, in regard to your set of facts, the office now held by trustee A will cease to exist once the mandated elections are held and the winners are certified and enter the duties of the new offices.

We believe the above is consistent with our opinion recently issued to Lawrence Primeaux, Esquire, dated July 19, 1989 (copy enclosed).

Sincerely,

Mike Moore Attorney General.