Mississippi Advisory Opinions August 28, 1991: 19910828 (August 28, 1991)

Advisory Opinion Text

Mr. Robert P. Shepard

Murphy and Shepard

City Attorney

309 Ratliff Street

Lucedale, MS 39452

Re: Election on Sale of Beer

Dear Mr. Shepard:

Attorney General Mike Moore has received your letter in your capacity as City Attorney for Lucedale in which you ask for an official opinion on Miss.Code Ann. § 67-3-9 which provides for local option elections in some municipalities on the sale of beer.

Your letter states:

The Mayor and Board of Aldermen have received a petition asking the Mayor and Board to call a local option election to permit the sale of beer of an alcoholic content of not more than four per centum (4%) by weight in the City, wherein it has been previously prohibited. The petition is in order, and the election has been ordered. The petition, in accordance with the language of the statute, asked for only a beer election. However, the question has been raised as to whether the sale of light wine (or wine coolers) of alcoholic content of not more than four per centum (4%) by weight would be permitted if the issue passes, even though the petition did not specifically refer to wine. What is your opinion?

Section 67-3-5 states that this chapter legalizes the sale and distribution of light wines and beer subject to the conditions set forth. Section 67-3-7 provides for county local option elections on the question of whether the county will permit the transportation, storage, sale, distribution, receipt and/or manufacture of wine and beer of an alcoholic content of not more than four percent by weight. Section 67-3-9 provides for local option elections in some municipalities on whether the municipality will permit the sale and distribution of beer but does not mention light wines and states in part:

Any city in this state, having a population of not less than two thousand, five hundred (2, 500) according to the latest federal census, at an election held for the purpose, under the election laws applicable to such city, may either prohibit or permit the sale and the receipt, storage and transportation for the purpose of sale of beer of an alcoholic content of not more than four per centum (4%) by weight. An election to determine whether such sale shall be permitted in cities wherein its sale is prohibited by law shall be ordered by the city council or mayor and board of aldermen or other governing body of such city for such city only, upon the presentation of a petition to such governing board containing the names of twenty per centum (20%) of the duly qualified voters of such city asking for such election. In like manner, an election to determine whether such sale shall be prohibited in cities wherein its sale is permitted by law shall be ordered by the city council or mayor and board of aldermen or other governing board of such city for such city only, upon the presentation of a petition into such governing board containing the names of twenty per centum (20%) of the duly qualified voters of such city asking for such election. No election on either question shall be held by any one city oftener than once in five years.

Section 67-3-9 provides for local option elections to determine whether or not beer can be lawfully sold in municipalities. This office is of the opinion that this section must be read in the context of the entire chapter on beer and light wines of an alcoholic content of not more than four per cent by weight. Therefore, we are of the opinion that the sale of light wine of an alcoholic content of not more than four per cent by weight would be permitted if a majority of the qualified electors voting in the election vote for the legal sale of beer, even though the petition and the ballot use the language of the statute and do not refer to wine.

Sincerely,

Mike Moore, Attorney General

Alice D. Wise, Special Assistant Attorney General

ATTACHMENT

July 31, 1991

Honorable Mike Moore

Attorney General

P.O. Box 220

Jackson, Mississippi 39205-0220

RE: Request for Attorney General's Opinion

Dear Mike:

This letter is being written to request a formal opinion on the interpretation of Mississippi Code Annotated, Section 67-3-9 (1972) . The facts are as follows: The Mayor and Board of Aldermen have received a petition asking the Mayor and Board to call a local option election to permit the sale of beer of an alcoholic content of not more than four per centum (4%) by weight in the City, wherein it has been previously prohibited. The petition is in order, and the election has been ordered. The petition, in accordance with the language of the statute, asked for only a beer election. However, the question has been raised as to whether the sale of light wine (or wine coolers) of alcoholic content of not more than four per centum (4%) by weight would be permitted if the issue passes, even though the petition did not specifically refer to wine. What is your opinion?

I am enclosing a copy of the statute in question and await your reply.

With every good wish, I am

Sincerely, Robert P. Shepard.