Mississippi Advisory Opinions November 19, 1986: AGO 000007643 (November 19, 1986)

AGO 000007643.

Dear Mr. Clark:

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

Your letter states:

In preparing to run for re-election in 1987 I have reviewed the new constable law, Chapter 441 of the 1986 Laws of Mississippi. There appears to be some question as to the district constables will be elected from in the 1987 election. Miss. Code Ann. 19-19-1 (Supp. 1986) appears to require that constables be elected from the board of supervisor's district in 1987. However, 19-19-2 (Supp. 1986) appears to require that constables be elected in 1987 from the district established for justice court judges.

I request an Attorney General's opinion as to the district to be used in the 1987 general election of constables.

As noted in your letter there exists an apparent conflict between Section 1 and Section 2 of Chapter 441 regarding the 1987 general election. Section 1 requires that the number of constables to be elected and the districts from which they will be elected coincide with the number and districts for justice court judges established pursuant to Miss. Code Ann. 9-11-2 (Supp. 1986). However, that portion of Section 2 which will be in effect until January 1, 1988, requires, generally, that there be five constables elected and that one be elected from each supervisor's district. This portion of Section 2 is a recodification of existing law.

In resolving this ambiguity, a number of rules of statutory construction must be utilized. In Warner v. Board of Trustees, etc., 359 So.2d 345 (Miss. 1978), the Court said:

The rule for construing conflicting provisions in the same statute was stated in Coker v. Wilkinson, 142 Miss. 1, 106 So. 886 (1926) as follows:

Where there are two #conflicting provisions in the same statute, the last expression of the Legislature must prevail over the former. Undoubtedly that principle of statutory construction is sound. (142 Miss. at 16, 106 So. at 887.)

Coker was cited with approval in Mississippi State Highway Commission v. Rives, 271 So.2d 725 (Miss. 1972) (Petition for Rehearing denied 1973). However the rule does not apply in all cases. In Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514 (1924) we stated:

The rule invoked by the appellant that, as between conflicting sections of the same act, the last in order of arrangement will control has no applica- tion, where the intention and purpose

Constable Claude Clark Page 3 NOV 19, 1986

of the whole act is clear and unmistakable, and to accept the literal wording of the latter provision would destroy a legislative policy, nullify the main provisions of the act, and entirely defeat the manifest intention and purpose of the lawmakers. (135 Miss. at 860, 100 So. at 517).

[359 So.2d at 347]

Because there is an ambiguity within Chapter 441, we may look at the title to the act in an effort to determine legislative intent. See Aikerson v. State, 274 So.2d 124 (Miss. 1973). It is clear from the title to the act that the Mississippi Legislature intended to effect a change beginning with the 1987 general election of constables. That portion of Section 2 which is in conflict with Section 1 was left in the Chapter to continue in effect those districts for which those constables now in office were elected. Therefore, to accept the literal wording of Section 2 would entirely defeat the manifest intent and purpose of the lawmakers.

It is the opinion of this office that Section 1, now codified as Miss. Code Ann. 19-19-2 (Supp. 1986), will control the general election of constables in 1987.

Hopefully this is responsive to your request. If we may be of further assistance, do not hesitate to contact this office.

Very truly yours,

EDWIN LLOYD PITTMAN ATTORNEY GENERAL

By: John H. Emfinger Special Assistant Attorney General

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