Mississippi Advisory Opinions August 09, 1990: AGO 000007520 (August 9, 1990)

AGO 000007520.

Dear Mr. Jones:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply.

Your letter states in part:

"On June 11, 1990, the Board of Supervisors passed a Resolution stating their intent to levy up to four (4) mills on all taxable property outside of incorporated municipalities in Amite County, Mississippi, for the purpose of raising funds to finance the operation of a solid waste disposal system for the rural area of Amite County, Mississippi, as authorized by Mississippi Code Section 19-5-21.

Prior to the levy approximately 2000 citizens of the area affected petitioned the Board objecting to the levy. The Board of Supervisors as authorized and directed by Mississippi Code Section 19-5-23, then voted to place the issue of the four (4) mills for garbage collection and disposal on the November ballot.

After the 1983 re-districting plan, some of the county's precincts have municipal residents as well as rural residents voting in the same precinct..." You then present four (4) questions which we will repeat and respond to in sequence.

QUESTION NO.1: Since the Resolution calls for tax on rural property only, will county residents who reside within municipalities be allowed to vote on this issue? RESPONSE: Mississippi Code Annotated 19-5-21 (Supp. 1989) provides in part: "To defray the cost of establishing and operating the system provided for in Section 19-5-19, the board of supervisors is authorized and empowered to levy an ad valorem tax not to exceed four (4) mills on the taxable property within the county in a garbage and rubbish disposal district which may be comprised of : (a) an area of the county lying partially inside and partially outside the limits of any municipality or municipalities or, (b) an area of the county lying entirely outside the limits of any municipality, established for the purpose of serving the particular area, except that no part of any municipality shall be included within a county system if same is being service under the municipality's garbage disposal system..."

Section 19-5-23 provides:

"The tax levy authorized by section 19-5-21 shall not be imposed until the board of supervisors shall have published notice of its intention to levy same. Said notice shall be published once each week for three (3) consecutive 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 less, of the qualified electors of the district affected 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 district voting at an election to be called and held for that purpose. The notice provided for herein shall only be required prior to the initial levy except when the board of supervisors intends to increase the levy over the amount shown in the initial notice." (emphasis added)

Since the proposed district excludes municipalities, citizens whose domicile is within a municipality could not be "qualified electors of the district". Therefore, county residents who reside within an incorporated municipality may not participate in the election in question.

QUESTION NO. 2: If the answer to question 1 is rural residents only, how will the registrar prepare the poll book, since part of the precinct will be voting on the issue and part of the precinct will not be voting? RESPONSE: We find no specific statutory procedure for the preparation of the pollbooks for such an election. However, necessary steps must be taken to insure that only qualified electors of the proposed district participate in the election.

QUESTION NO. 3: What is the procedure for calling the special election to be put on the November ballot including the notice procedure? RESPONSE: Again we find no specific statutory procedure, however we will describe the general procedure which, in our opinion, must be followed. Upon the proper factual determination by the board of supervisors that twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified electors the district have protested the levy of the tax in question, said board by a lawfully adopted order or resolution must direct the county election commission to prepare for and conduct an election on a date specified therein. It is our opinion that at least thirty (30) days notice must be given. The basis for this opinion is Duggan v. Board of Supervisors of Stone County, 43 So. 2d 566 (1949). In Duggan the Mississippi Supreme Court dealt with the notice requirements of a local option election on the sale of light wine and beer. In that case the Court noted that the local option statute pursuant to which the election was being conducted did not prescribe the manner and method of giving notice of the election but ruled that the notice requirements of Mississippi Code Annotated 3108 (1942), now 19-3-55 (1972), as the most analogous statutory notice provision was applicable.

The Court said:

"The argument of appellants is, after citing Simpson County v. Burkett, 178 Miss. 44, 172 So. 329, that, following the rule in that case of applying the most analogous statute to Section 10208, in determining both the amount of notice to be given and the manner and mode of giving it, since the notice was not posted at the courthouse door and in each election precinct of the county, it was not sufficient in law. Nevertheless, appellants say in their brief: `We are not unaware of the decision in the case of Henry v. Board of Supervisors of Newton County, 203 Miss. 789, 34 So.2d 232, 233 [35 So.2d 317] where the court held in answer to the precise contention which we have raised here that the maxim, `optima est legis interpres consuitudo' (custom is the best interpreter of the law) and that the usual and ordinary way of giving notice of elections dealing with county-wide matters by publication in a newspaper was sufficient notice."

They do not agree with that decision, however.

We are of the opinion that our conclusion there was then and still is sound, and the required manner and mode of giving the notice of election in the case at bar was not controlled by Section 3294, but more nearly by Section 3018, Code 1942, which simply provides for thirty days notice for the election. We said in the Henry case, supra: `Counsel for the appellant says... the publication should be in accord with that required under a statute analogous to this one which, he says, is Section 3294, Code of 1942, which deals with special elections to fill vacancies in offices. However, we are of the opinion that the statute contemplates that the publication of the notice of the election should be made in the usual and ordinary way that notice of county-wide matters are usually given, that is, by the publication in a newspaper; and this has heretofore been the custom in giving notice of such elections.'...."

QUESTION NO. 4: Will the election decide on a four (4) mill levy for fiscal year 1990-1991 or for the year 1991-1992? If 1990-1991 tax year, then once the election is decided in November, the time for levying the four (4) mills will have already passed, assuming a majority votes for the four (4) mills, will we then be able to levy the four (4) mills in September, 1991 for the 1991-1992 year without any additional notice? RESPONSE: Although the resolution declares the intent of the Amite County Board of Supervisors to levy the tax in question for the 1990-1991 fiscal year, if the election on the question is not held until November, 1990, any authorization by the electorate to levy said tax would be subsequent to the regular time for the board to levy the county ad valorem taxes for fiscal year 1990-1991 as provided for in Mississippi Code Annotated 27-39-317 (Supp. 1989). If notice was published indicating that the initial levy for the support of the proposed district would be for fiscal year 1990-1991 and said initial levy is delayed for a year, it is our opinion that a corrected notice would have to be published. This corrected notice would not authorize the submission of a petition or protest forcing a second election on the question.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL BY:

Phil Carter Special Assistant Attorney General

PC:mfd