Mississippi Advisory Opinions April 11, 1983: 19830411 (April 11, 1983)

Advisory Opinion Text

Honorable Lem Adams, III

Attorney for the City of Brandon

98 Timber Street

Brandon, Mississippi 39042

Re: Beer and Wine

Dear Mr. Adams:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply.

You write as Municipal Attorney for the City of Brandon and state:

“The Mayor and Board of Aldermen of the City of Brandon, Mississippi have requested that I seek your official opinion as to whether or not it is lawful for light wine of an alcoholic content of not more than four percentum (4%) by weight to be sold within the municipality.

“In December of 1980 a referendum was held pursuant to Section 67-3-9, Mississippi Code of 1972 . A majority of the qualified electors voted for the sale of beer of an alcoholic content of not more than 4% by weight. Accordingly, on December 22, 1980 an Ordinance was adopted by the City authorizing the sale of beer within the municipality.

“Wholesalers have now approached the City to amend their Ordinance to allow the sale of not only beer but light wine of an alcoholic content of not more than 4% by weight. In formulating your opinion, please examine Sections 67-3-1, 67-3-7, 67-3-9, Mississippi Code of 1972 .”

The text of Section 67-3-5 of the Mississippi Code of 1972, Annotated (the “Code”), declares that, subject to other provisions in Chapter 3 of Title 67, the transportation, sale, and possession of wine and beer of an alcoholic content of not more than four per centum by weight is lawful.

It is understood that under the local option provisions of Section 67-3-7 of the Code, the sale of beer and wine is not lawful in Rankin County. Subsection (2) of this section provides:

“... (2) Nothing in this section shall make it unlawful to possess beer or wine, as defined herein, in any municipality which has heretofore or which may hereafter vote in an election, pursuant to section 67-3-9, in which a majority of the qualified electors vote in favor of permitting the sale and the receipt, storage and transportation for the purpose of sale of beer or wine as defined herein.” (Emphasis Supplied)

Section 67-3-9 provides in part:

“ § 67-3-9 . Local option elections in certain municipalities.

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....

...The tickets to be used in said election shall have the following words printed thereon: 'For the legal sale of beer of an alcoholic content of not more than four per cent (4%) by weight;' and the words 'Against the legal sale of beer of an alcoholic content of not more than four per cent (4%) by weight, ' next below. In making up his ticket the voter shall make a cross (x) opposite the words of his choice.

If in said election a majority of the qualified electors voting in the election shall vote 'For the legal sale of beer of an alcoholic content of not more than four per cent (4%) by weight, ' then the city council or mayor and board of aldermen or other governing body shall pass the necessary order permitting the legal sale of such beer in such city. If in said election a majority of the qualified electors voting in the election shall vote 'Against the legal sale of beer of an alcoholic content of not more than four per cent (4%) by weight, ' then the city council or mayor and board of aldermen or other governing body shall pass the necessary order prohibiting the sale of such beer in such city....”

It is understood from your letter that the Brandon election ballot had stated as a proposition only a choice as to beer as such is defined in Chapter 3 of Title 67.

The above cited Code sections are interpreted to state that an election may be conducted under Section 67-3-9 to decide if the sale of beer, or wine, as defined in Chapter 3 of Title 67, or beer and wine shall be lawful in a municipality.

Under Section 67-3-9, whatever the result, the statute directs that the municipality conducting the election shall express the result — permitting or prohibiting the sale — in a municipal order.

Your letter does not state the text of the Brandon ordinance. However, whatever the text may be, we conclude that it would not be a municipal ordinance passed after the election to express the result which makes lawful the sale of beer or wine; it is the election result which does.

We are, therefore, of the opinion that since the Brandon election proposition was only a decision as to the sale of beer that the sale of wine as such is defined in Chapter 3 of Title 67 cannot be made lawful by the passage of a Brandon municipal ordinance.

With kind regards, I am

Very truly yours,

Bill Allain Attorney General