Mississippi Advisory Opinions July 24, 1981: AGO 000004234 (July 24, 1981)

AGO 000004234.

Dear Mr. Belk:

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 Indianola and state in part:

"...The City of Indianola operates under a special charter, and the term of office of its present Mayor and Board of Aldermen expires at the end of the calendar year 1981. The Board is considering a radical change in its garbage collection system. The new system would be much more automated and would require either the lease or purchase of substantial amount of equipment. Preliminary indications are that the new system would result in a substantial saving to the City.

You pose three questions which are set out below with responses. Responses are based upon an assumption that Indianola's special charter does not address the matter raised by these questions.

Question 1: "May the Board adopt such a system at this stage of their tenure of office?"

Response: The general powers of municipalities as to creation, maintenance, and operation of public utility systems, including garbage disposal systems are set out in Chapter 27 of Title 21 of the Mississippi Code of 1972, Annotated (the "Code") and, more particularly, in Section 21-27-23 within this chapter. The governing authorities of the City of Indianola may now act under this chapter to create a municipal garbage disposal system by changing an existing municipal garbage disposal system or systems.

Question 2: "What limitations are placed upon the actions of the elected officials during the latter stages of their respective terms of office other than those provided by Section 21-35-27 and Section 23-1-47 of the Mississippi Code of 1972?"

Response: The cited Section 21-35-27 provides: " 21-35-27. Expenditures for last year of term are limited.

No board of governing authorities of any munici- pality shall expend from, or contract an obligation, against the budget made and published by it during the last year of the term of office of such governing authorities, between the first day of April and the first Monday of the following July, a sum exceeding one-fourth of any item of the budget made and published by it, except in cases of emergency provided for in section 21-35-19. The city clerk of any municipality is hereby prohibited from issuing any warrant contrary to the provisions of this section."(Emphasis Supplied)

The text of Section 21-35-27 is derived from and is identical with Section 15 of Chapter 497, General Laws of 1950, the heading of which states that this chapter is "AN ACT providing for a municipal budget system for protecting and controlling municipal finances, tax levies and expenditures; providing for its administration; providing penalties for the violation thereof, and for other purposes.

Chapter 497 is plainly a general law intended to apply to all municipalities. As to special charter municipalities, the Legislature may amend the charters of municipalities operating under special charters by general law applying to all municipalities. See Quinn v. City of McComb, 212 Miss. 730, 55 So.2d 479 (1950).

Chapter 497 is also plainly an act designed to carry out a mandate expressed in Section 80 of the Mississippi Constitution of 1890:

"Section 80. Provision shall be made by general laws to prevent the abuse by cities, towns, and other municipal corporations of their powers of assessment, taxation, borrowing money, and contracting debts."

The General Laws of 1950 also include Chapter 491, the heading of which states that this chapter is "...AN ACT to provide for the creation, enlargement, and abolition of municipalities; to prescribe the forms of government and officers thereof and for the election of such officers; to specify powers and duties thereof; to repeal all laws in conflict herewith; and for other related purposes. ..."

Under Article IV, Elections, of Chapter 491, Section 62 thereof provides in part:

"Section 62. Municipal elections--time for holding. A general municipal election shall be held in each city, town or village on the first Tuesday after the first Monday of June, 1953, and every four years thereafter, for the election of all municipal officers elected by the people. The officers elected shall qualify and enter upon the dis- charge of their duties on the first Monday of July after such general election, and shall hold their offices for a term of four years and until their successors are duly elected and qualified. ..." (Emphasis Supplied)

(The cited provisions of Section 62 now appear as Sections 21-11-7 and 21-15-1 of the Code.)

When we read the above provisions of Chapters 491 and 497 on the subjects of elections, terms of office, and control of municipal finances, we conclude that the provisions of Section 21-35-37 are intended to apply to municipalities which conduct municipal general elections for the election of all municipal elected officers for a term of years and on the dates fixed by Sections 21-11-7 and 21-15-1.

Since Indianola does not conduct municipal general elections as provided in Section 21-11-7 and 21-15-1, we also conclude that the restrictions on municipal expenditures stated in Section 21- 35-27 do not apply to the expenditure of municipal funds by the Indianola municipal governing authorities.

The cited Section 23-1-47 provides:

" 23-1-47. Municipalities as subject to restrictions on increasing employees.

The restrictions imposed in sections 23-1-43 and 23-1-45 shall likewise apply to the mayor and board of aldermen, or other governing authority, of each municipality, in the employment of labor for working and maintaining the streets of the municipality during the four-month period next preceding the date of holding the general election in such municipality for the election of municipal officers." (Emphasis Supplied)

There are no other statutory provisions restricting the expenditure of municipal funds by municipal governing authorities during the last year of their term of office.

Question 3: "To what months, if any, do the statutory requirements of the sections quoted in Question 2 above apply to the City of Indianola, as it operates under a special charter?"

Response: See the above response to Question 2 as to Section 21-35-27.

Section 1-3-29 of the Code provides:

" 1-3-29. Month.

The term 'month', when used in any statute, means a calendar month, unless a contrary intention be expressed."

Section 1-3-29 was interpreted in Langley v. State, (Miss.) 154 So. 544, suggestion of error overruled in 170 Miss. 520, 155 So. 682 (1934):

"...The term 'month', when used in any statute, means a calendar month, unless a contrary intention be expressed, section 1377, Code 1930, in computing which time must be reckoned by looking at the calen- dar and not by counting the days, and when not coin- cident with the particular month named in the calendar such a month is the period of time from the day from which the month is to be computed to the day numeri- cally corresponding thereto in the following month less one, if the following month has so many days; if not, to the last day thereof. Williams Bros. v. Bank of Blue Mountain, 132 Miss. 178, 95 So. 843, 845. ..."

Considering Section 1-3-29 and Langley, Section 23-1-47 is interpreted to mean that its restrictions would apply to expenditure of municipal funds by Indianola governing authorities during a period preceding the date of the next Indianola municipal general election calculated as beginning on the day immediately preceding the election date and going backwards to the day numerically corresponding thereto in the immediately preceding fourth calendar month.

Considering the matter of either the lease or purchase of equipment for a changed garbage disposal system, the term of contracts for leasing or purchasing may not extend beyond the term of office of the incumbent Indianola governing authorities.

With kind regards, I am

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

S. E. Birdsong, Jr. Assistant Attorney General

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