Mississippi Advisory Opinions August 07, 2015: AGO 2015-00276 (August 07, 2015)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: Nancy Thomas

SUBJ: Elections - Municipal

SBCD: 69

TEXT: Nancy D. Thomas, Esq.

City Attorney

City of Vicksburg

P.O. Box 150

Vicksburg, MS 39181

Re: Election for levy of sales tax per SB 2926 (2015 Reg. Session)

Dear Ms. Thomas:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states in part:

In the 2015 Regular Session, the Legislature enacted SB 2926 which is a local and private law authorizing the implementation of a sales tax, not to exceed 2%, on hotels and restaurants if passed by a vote of 60% of the qualified electors who vote in the election.

1. In conducting the election referenced in SB 2926, is the City of Vicksburg authorized to open only two (2) polling places for the sales tax election as opposed to the twelve (12) polling places it opens for the election of City officials?

2. What provisions of the election code are applicable to this sales tax election? Does the Vicksburg Election Commission, who oversees the general election of the Mayor and Aldermen, also oversee this election?

3. There are two separate taxes authorized in SB 2926 – a restaurant tax and a hotel tax. However, the law also says that the ballot must be “For the Tax” or “Against the Tax”. Would it be permissible to have these two taxes be separate items on the ballot with each item having a box “for the tax” and “against the tax”?

Response

Question 1

As stated in MS AG Op., Lowe (February 13, 2009):

Questions concerning the workings of a special charter municipality should be answered by reference to the special provisions of that charter and provisions of a special charter that are contrary to general statutory provisions control, except where the general statutes expressly provide otherwise.

We have consistently opined that in the event a municipal special charter is silent on a particular matter, general statutory provisions would apply. MS AG Op, . McKenzie (January 8, 2014).

The City of Vicksburg is governed by a special charter. Section 3(b) of the charter provides that “the mayor and aldermen may establish as many precincts for voting in each ward as may be necessary for the convenience of the electors.” Miss. Code Ann. Section 23-15-557 describes a code charter’s authority to establish precincts and polling places and states:

The governing authorities of any municipality within the State of Mississippi are hereby authorized and empowered, in their discretion, to divide the municipality into a sufficient number of voting precincts of such size and location as is necessary, and there shall be the same number of polling places . The authority conducting an election shall not be required, however, to establish a polling place in each of said precincts, but such election authorities, whether in a primary or in a general election, may locate and establish such polling places, without regard to precinct lines, in such manner as in the discretion of such authority will better accommodate the electorate and better facilitate the holding of the election. (Emphasis added).

Vicksburg’s special charter gives the governing authority discretion in establishing the number of voting precincts in the city; however, the charter is silent as to the required number of polling places. Section 23-15-557 requires code charter municipalities to establish the same number of polling places as precincts. Because the special charter does not speak to the number of polling places, we are of the opinion that the general law requires the city to establish polling places equal to the number of precincts.

Question 2

Section 3 of Senate Bill 2926 describes the procedure by which the election is to be held. Section 23-15-1, et seq., the Mississippi Election Code, contains, the procedures applicable to the conduct of elections generally. This being an election called by the governing authority of the city and voted on by the qualified electors of the city, the election will be conducted by the Vicksburg Election Commission.

Question 3

Senate Bill 2926, Section 2(1), reads in part:

For the purposes of providing funds to acquire real property and constructing, equipping, owning, operating, leasing, furnishing and maintaining recreation and tourism venues and facilities, and/or pay the principal of and interest on bonds issued on the indebtedness incurred under Section 5 of this act, the governing authorities are authorized, in their discretion, to levy and collect from the following persons a tax , which shall be in addition to all of the taxes and assessments imposed. The tax shall be imposed on the following persons: . . . (Emphasis added).

Section 3 of the bill states in part:

. . the ballots used in the election shall have printed thereon a brief statement of the amount and purpose of the proposed tax levy and the words “FOR THE TAX” and, on a separate line, “AGAINST THE TAX” and the voters shall vote by placing a cross (X) or check (۷) opposite their choice on the proposition.

Having reviewed the language of the bill and the description of the ballot language therein, we are of the opinion that the Legislature authorized a vote on the sales tax as one issue. We find no authority to list the items separately on the ballot.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Elizabeth S. Bolin, Special Assistant Attorney General.

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Notes:

We also note that Section 19.1 of the charter states, “Any matters not covered in this charter shall be governed by the general laws of the State of Mississippi applicable to municipalities.”

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