Mississippi Advisory Opinions July 06, 1982: AGO 000003458 (July 6, 1982)

AGO 000003458.

Dear Mr. Fortenberry:

Attorney General Allain has received your letter of request dated June 29, 1982, and has assigned it to me for research and reply. You submit the following, to-wit:

"I write as attorney for the board of super- visors of Lauderdale County, Mississippi, to request an opinion from your office.

"Section 41-59-59, Mississippi Code of 1972, authorizes a tax levy not to exceed one (1) mill to support an emergency medical service district. The statute requires the board to publish its intent to make the levy at least three (3) times not more than sixty (60) days nor less than twenty-one (21) days 'interven- ing between the time of the first notice and the meeting at which said board purposes to levy such tax. The board may not levy the tax 'if, within the time of giving notice' a protest is filed by the number of taxpayers set forth in the section without majority ap- proval of voters in an election called thereon.

"A board of supervisors may only levy its taxes during the September meeting. The statutory language of 'the meeting at which the board pro- poses to levy such tax' implies only the September meeting since the board may levy a tax only in September. In your opinion, does this quoted language refer only to the September meeting or does it include a meeting prior to September at which time an order may be entered to levy the tax in September.

"The statute allows a protest to be filed, trig- gering an election on the question of the levy. In your opinion, does the language 'if, within the time of giving notice' allow a protest to be filed up until the September meeting or does it limit the time for filing a protest to the twenty-one (21) day period of publication of the board's intent.

"If a protest is allowed up until the September meeing, an election is impossible since the board must give notice of an election thirty (30) days prior to its conduct and is required by law to make its tax levy no later than September 15. If the sixty (60) and twenty-one (21) day period is tied only to the September meeting, it appears that the only workable procedure under this sta- tute is to limit the time for protest to the twenty-one (21) days during which publication is made, thereby allowing thirty-nine (39) days for giving notice and holding the election prior to the September meeting.

"The Lauderdale County board is considering levy- ing the one (1) mill tax in September of this year. Publication thereof must be initiated on July 9, 1982. The twenty-one (21) day period will expire on July 30, 1982. The board is apparently precluded from putting the question on the ballot of their own initiative, without waiting for any protest which might be filed, since the Supreme Court has apparently prohibited such 'advisory opinion' elections if not specifically authorized by the code section. Thus, a resolution of this question by your office would be most helpful."

Section 41-59-59, Subsections (1) and (2) Mississippi Code of 1972, as amended, provide, in part:

"(1) . . . The tax herein authorized shall not be levied until the board of supervisors shall have published notice of its intention to levy same; said notice to be published once each week for three (3) weeks in some newspaper having a general circulation in such county, but not less than twenty- one (21) days, nor more than sixty (60) days, intervening between the time of the first notice and the meeting at which said board proposes to levy such tax. If, within the time of giving notice, twenty percent (20%) or fifteen hundred (1500), whichever is the lesser, of the qualified electors of the county shall protest or file a petition against the levy of such tax, then such tax shall not be levied unless authorized by a majority of the qualified electors of such county, voting at an election to be called and held for that purpose. . . " .

"(2) . . . The tax levy shall be made by the board of supervisors at the time and in the manner that other county tax levies are made.

It is the opinion of this office that it is the legisla- tive intent that the required notice be published one time each week for three successive weeks and that the board specify in such notice the date for the filing of protest or petitions and the date on which the board proposes to enter its order that the tax levy be made, unless on or before the date fixed by the board and specified in such notice, twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified electors of the county shall protest or file a petition against the levy of such tax, in which event such levy can not be made until an election is called and the levy is approved by a majority of the qualified electors voting at such election. If no protest or petitions are filed, or if protest and petitions bearing the required number of signatures of qualified electors are filed, and an election is held, and the levy of the tax is approved by a majority of the voters voting at such election, the order of the board shall be entered imposing the tax and ordering that the tax levy is to be made at the same time and in the same manner that other tax levies are made.

The statute further provides that the date on which the board proposes to act as specified and published by the board, must be not less than twenty-one (21) days nor more than sixty (60) days after the first publication of such notice.

It is the opinion of this office that any protest or petition against the levy of such tax must be filed with the board on or before the date specified by the board for the filing of protest and petitions and on which the board proposes to enter its order to levy such tax as specified and published by the board.

It is the further opinion of this office that the statute does not limit the date of publication of such notice to not more than sixty (60) days prior to the date on which other tax levies are made.

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY

P. L. Douglas First Assistant Attorney General

PLD:mfd