Mississippi Advisory Opinions May 24, 1983: AGO 000003644 (May 24, 1983)

Mississippi Attorney General Opinions

1983.

AGO 000003644.

1983-895

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Dear Mr. Williamson:

Attorney General Allain has received your letter of request and has assigned it to me for research and reply. Your letter states:

"The Board of Supervisors requests an opinion from your office involving the facts as follows:

"On April 23, 1983, the Justice Court Judge of District 5, Simpson County. Mississippi, died as a result of a gunshot wound. On April 4, 1982, the Board of Supervisors adopted an order establishing two (2) Justice Court Districts for Simpson County, Mississippi, as mandated by state law. The order recited, 'It is, therefore, ordered that henceforth said election for Justice Court Judge shall be held from each of the above districts.' The order of the Board also directed that the plan creating two posts be submitted to the United States Attorney General pursuant to Section 5 of the Voting Rights Act of 1964 for preclearance.

"On December 1, 1982, the preclearance was sub- mitted to the Justice Department, and on Feburary 4, 1983, the Justice Department forwarded a letter to the undersigned indicating that the Attorney General 'does not interpose any objection to the change in question.'

"The Board of Supervisors of Simpson County, Mississippi, requests your opinion as to whether or not an election under Section 23-5-197 of the Mississippi Code is mandatory in view of the order of the Board of Super- visors and the subsequent notice of the pre- clearance of the Justice Department." Mississippi Code Annotated 23-5-197 (1972) provides in part:

"When a vacancy shall occur in any county or county district office, the same shall be filled by appointment by the board of supervisors of the county, by order entered upon its minutes, where the vacancy occurs, or by appointment of the president of the board of supervisors, by and with the consent of the majority of the board of supervisors, if such vacancy occurs when said board is not in session, and the clerk of the board shall certify to the secretary of state the fact of the appointment, and the person so appointed shall be commissioned by the governor; and if the unexpired term be longer than six months, such appointee shall serve until a successor is elected as hereinafter provided.

When the unexpired term shall exceed six months, the board of supervisors of the county shall make an order, in writing, directed to the commissioners of election, commanding an election to be held in the county or proper district, on a day to be named in the order, within sixty days, to fill the vacancy. The election commissioners then shall give at least thirty days' notice of such election, shall require each candidate to qualify at least ten days before the date of the election, and shall give a certificate of election to the person elected, and shall return to the secretary of state a copy of the order of holding the election, showing the results thereof, certified by the clerk of the board of supervisors. The person elected shall be commissioned by the governor." (Emphasis added)

The above statute requires the board of supervisors to make an order commanding an election to be held within sixty(60)days to fill a vacancy in any county or county district office.

The sixty (60) day period begins to run on the date such order is entered. There is no provision which specifies when such an order must be made.

It is the opinion of this office that the Simpson County Board of Supervisors may lawfully and indefinitely delay entering an order declaring a vacancy and setting the date for an election.

Therefore, if such an order is not entered prior to the end of the current term of the office in question, no special election would be required.

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY

Phillip C. Carter Special Assistant Attorney General

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