Mississippi Advisory Opinions January 23, 1984: AGO 000004063 (January 23, 1984)

AGO 000004063.

Dear Mr. Howorth:

Attorney General Edwin Lloyd Pittman has received your letter and assigned it to me for research and reply.

Your letter states:

....As I advised in our telephone conversation of January 17, 1984, the Town of Madison shall be holding a special election to fill the position of Alderman. The resignation of the Alderman in question becomes effective January 31, 1984. The next regular Town meeting is Tuesday, February 7, 1984. At such time a resolution shall be presented to the Mayor and Board calling for a special election to be held on Thursday, March 8, 1984, which is a period of 30 days if you exclude February 7, and include March 8. We shall also publish a notice of said special election in a paper of general circulation in the Town of Madison on February 9, 16, 23 and March 1, 1984.

Also, per our conversation and my interpretation of the statutes, any potential candidate for said alderman position shall file his/her petition signed by at least 50 qualified electors of the Town with the Town Clerk ten (10) days prior to said election or by February 27, 1984. If no candidate presents his/her petition by said date I understand that the governing authority can fill the vacancy by appointment.

Further, if only one person qualifies as aforesaid, the governing authority shall dispense with the election and appoint that one candidate in lieu of an election.

I would appreciate your opinion as to whether the steps outlined above are in accordance with the law as interpreted by your office....

Reference is made to Section 21-11-9 of the Mississippi Code of 1972, Annotated (the "Code"); the below quoted part of its text is interpreted by this office to apply:

21-11-9. Election to fill vacancy in elective office; time for holding.

When it shall happen that there is a vacancy in an elective office in a city, town or village, the unexpired term of which shall exceed six months, the governing authority, or remainder of the governing authority, of said city, town, or village shall make and enter on the minutes an order for an election to be held in such city, town or village to fill the vacancy. At least thirty days' notice of such election shall be given. Each candidate is required to qualify at least ten days before the date of the election.... ....If no candidate shall receive a majority vote at the election, the two candidates receiving the highest number of votes shall have their names placed on the ballot for the election to be held one week thereafter. The candidate receiving a majority of the votes cast in said election shall be elected. The clerk of the election commission shall then 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 and runoff election, showing the results thereof, certified by the clerk of the governing authority. The person elected shall be com- missioned by the governor.

However, if nine days prior to the date of the election only one person shall have qualified as a candidate, the governing authority, or re- mainder of the governing authority, shall dispense with the election and appoint that one candidate in lieu of an election. In the event no person shall have qualified at least ten days prior to the date of the election, the governing authority, or remainder of the governing authority, shall dispense with the election and fill the vacancy by appointment. The clerk of the governing authority shall certify to the secretary of state the fact of the appointment, and the person so appointed shall be commissioned by the governor.

The sentence ...."At least thirty days' notice of such election shall be given...." is interpreted to mean that there must be at least 30 days between the first publication of notice of a special election to fill a vacancy in office and the date of the election.

Under this interpretation the date of the first notice published for a special election to be held on March 8, 1984 would be February 7, 1984, which counts the day of publication and excludes the day of an election on March 8, 1984. Section 21-11-11 of the Code is interpreted to also apply to such a special election:

21-11-11. Time for holding special elections. Whenever under any statute a special election is required or authorized to be held in any munic- ipality, and the statute authorizing or requiring such election does not specify the time within which such election shall be called, or the notice which shall be given thereof, the governing authorities of the municipality shall, by resol- ution, fix a date upon which such election shall be held. Such date shall not be less than twenty- one nor more than thirty days after the date upon which such resolution is adopted, and not less than three weeks' notice of such election shall be given by the clerk by a notice published in a newspaper published in the municipality once each week for three weeks next preceding the date of such election, and by posting a copy of such notice at three public places in such municipality.

In the matter of petitions the provisions of Section 23-5- 134, as stated to apply after January 1, 1983, are interpreted to apply to such a special election: in a municipality with a population of 1,000 or more where alderman are elected at large candidates qualify by delivering to the Municipal Clerk a petition signed by not less than 50 qualified electors at a date not less then 10 days prior to the date of the election. Should no person qualify or only one person shall qualify nine days prior to the date of the election the municipal govern- ing authorities are to act as provided in the quoted provisions of Section 21-11-9.

With kind regards,

Very truly yours,

EDWIN LLOYD PITTMAN ATTORNEY GENERAL

By:

S. E. Birdsong, Jr. Assistant Attorney General

SEB,Jr./awt