Mississippi Advisory Opinions August 08, 1990: AGO 000007518 (August 8, 1990)

AGO 000007518.

Dear Mr. Lackey:

Attorney General Mike Moore has received your letter requesting an opinion of this office and has assigned it to me for research and reply.

Your letter presents for opinion two questions concerning the responsibilities of the Board of Supervisors of Calhoun County in connection with a petition requesting a referendum pursuant to Miss. Code Ann., 19-3-55 (Supp. 1989), on the question of retaining a satellite prison facility in Calhoun County. More particularly, your questions as paraphrased are as follows:

(1) Did the actions of the Board of Supervisors taken on April 13, 1990, wherein the board voted to renew the lease with the Department of Corrections extinguish the right of petitioners to request a referendum on the question presented unless the Board rescinded its act of April 13, 1990?

(2) If the right was not extinguished by the actions of the Board of April 13, 1990, do petitioners have the right to supplement their petition until the required names are obtained in light of the action taken by the Board on July 13, 1990, wherein it found that the petition contained an insufficient number of signatures?

Since our opinion concerning the second question moots the first issue, we will address your second question first and then your initial question.

Your letter states that on July 13, 1990, the Board adopted the report and certification of the election commissioners that the petition in question contained only 2,220 signatures and that the board found that the petition failed to meet the statutory requirements. Your letter also states that after the meeting of July 13, 1990, supplemental petitions were tendered to the Board containing additional names, which if considered and if valid would mean the petition calling for a referendum did contain the required 25% of the qualified electors signatures.

From the facts presented, we must assume that the Board's adjudication of July 13, 1990 that the petition was insufficient was an official act and judgment of the board. On that assumption, it is the opinion of this office that the petition could not be supplemented after that adjudication by the Board. Accordingly, the petition calling for a referendum is legally insufficient. This is the holding of the Supreme Court of Mississippi in Coleman v. Thompson, 63 So.2d, 533 (1953); Miles v. Board of Supervisors, 26 So.2d 541 (1946); and, Moffett v. Board of Supervisors of Attala County, 179 So. 352 (1938). Since we are advised that the lease with the Department of Corrections has not been executed as of this date and therefore, it is still possible for a legally sufficient petition to be presented, we will address your first question.

It is our opinion that so long as the Board's vote to "renew" the lease is capable of being rescinded, which in our view it is up until the time the lease is adopted by the Board, spread upon the minutes, and executed, it is within the Board's legal power to carry the proposition into effect.

Accordingly, the vote to renew the lease did not extinguish the rights of petitioners under Miss. Code Ann., 19-3-55 (1972). To hold otherwise would allow the circumvention of 19-3-55 in most cases by merely taking a preliminary or antecedent vote in connection with a particular measure that is the subject of a petition circulating throughout the county.

In view of our opinion and in the event the board of supervisors is presented with another petition on the measure before the execution of the lease with the Department of Corrections, the Board should follow the procedure outlined by the Supreme Court in Gill v. Woods, 226 So.2d 912 (1969) and Leigh v. Board of Supervisors of Neshoba County, 525 So.2d 1326 (1988). This procedure is as follows:

Unless there is some law enacted by the legislature to the contrary, the Board of Supervisors must act when twenty-five per cent of the qualified electors of the county file a petition with the Board touching matters affecting the entire county. The Board must either put the proposition sought by the electors into effect, or the Board may submit the proposition to a vote of the qualified electors.

The Board has no discretion except the choice expressed in Section 3018, Mississippi Code of 1942 Annotated (1956), [19-3-55]. When such a petition is filed, it becomes the duty of the Board to immediately determine whether or not (1) the petition contains matter affecting the entire county; (2) whether or not it contains the names of twenty-five per cent of the qualified electors of the county; (3) whether or not it is possible for the county to carry into effect the proposition within the legal power of the Board of Supervisors. If the Board determines the issue in the affirmative, the Board must proceed as the statute directs. If the Board determines that the petition is not sufficient on one of the reasons enumerated above, the Board must make such a determination of the issues of record on its minutes. The Board cannot ignore the petition filed by the citizens of the county. In either case, the Board's judgment must be properly recorded on the minutes of the procedure of the Board in compliance with Section 2886, Mississippi Code 1942 Annotated (Supp. 1968). [19-3-27], Gill v. Woods, 226 So.2d 912 (1969), 525 So.2d at 1329.

Sincerely yours,

Mike Moore, Attorney General

BY: Giles W. Bryant Special Assistant Attorney General

GWB/ra