Mississippi Advisory Opinions October 17, 1990: AGO 000010529 (October 17, 1990)

AGO 000010529.

Dear Mr. Meadows:

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

Your letter states:

"As Attorney for the Harrison County Board of Supervisors, I have been directed to request an opinion from your office concerning the recent gaming legislation enacted in the Regular 1990 Session, as amended during the Special Session.

In particular, the Board's concern has to do with the date on which an election shall be held in response to petitions from the requisite number of qualified electors.

Section 19-3-79, Miss. Code Ann. (3) provides the following:

(3) If a Petition signed by twenty percent (20%) or fifteen hundred (1500), whichever is less, of the registered voters of a county in which a notice of intent to apply for a gaming license is published is filed within thirty (30) days of the date of the last publication with the circuit clerk of the applicable county, the board of supervisors of such county shall authorize the circuit clerk to hold an election on the proposition of allowing legal gaming to be conducted aboard cruise vessels or vessels, as the case may be, in the county. The referendum shall be held not less that thirty (30) days nor more than sixty (60) days after the certification by the circuit clerk to the board of signatures and of the percentage; however, if the petition is certified within ninety (90) days of a general election, the referendum shall be held at the same time as the general election. The referendum shall be advertised, held, conducted and the result thereof canvassed in the manner provided by law for advertising, holding and canvassing county elections.

QUESTION:

Given the mandate in the referenced Section that `if the petition is certified within ninety (90) days of a general election, the referendum shall be held at the same time as the general election', what effect does the next sentence in this Section have on this mandate: `the referendum shall be advertised, held, conducted and the result thereof canvassed in the manner provided by law for advertising, holding and canvassing county elections.'

Several obvious problems seem to have been created by the referenced `next sentence' due to time constraints, and in particular, advertising, reprinting ballots, etc.

The Board expects several petitions to be presented to the Circuit Clerk on Friday, October 12. Given the general election is now scheduled for November 6, and expedited response to this request would be greatly appreciated."

The Mississippi Supreme Court on several occasions has held that thirty (30) days notice as prescribed in Mississippi Code Annotated Section 19-3-55 (1972) must be given as a prerequisite to conducting a referendum on the sale of liquor or alcoholic beverages. See Simpson v. Burkett, 172 So. 329 (1937); Martin v. Winston County, 178 So. 315 (1938); Duggan v. Bd. of Supr., Stone County, 43 So. 2d 566 (1949); Thornton v. Wayne County Election Commission, 272 So.2d 298 (1973); Howard v. Crider, 341 So.2d 477 (1977). It is the opinion of this office that the statutory language requiring the gambling referendum to be "advertised, held, conducted and the result thereof canvassed in the manner provided by law for advertising, holding and canvassing county elections", requires that thirty (30) days notice be given in accordance with Section 19-3-55 and that the contemplated method of giving said notice is by publication in a newspaper of general circulation. See Henry v. Newton County, 34 So. 2d 232 (1948).

This clearly conflicts with the provision in the preceding sentence of the same statute that requires that "if the petition is certified within ninety (90) days of a general election, the referendum shall be held at the same time as the general election".

The conflicting provisions require that we resort to the rules of statutory construction in order to resolve the conflict.

Applicable in this instance is the well settled rule of construction that where there are conflicting provisions in the same statute the last provision in order of arrangement will control. See Warren v. Board of Trustees, 359 So.2d 345 (Miss. 1978); State Highway Commission v. Rives, 271 So.2d 725 (Miss. 1972); Coker v. Wilkerson, 106 So. 886 (1926).

Applying the above stated rule of statutory construction, we conclude that the thirty (30) day notice requirement is a mandatory prerequisite to the holding of the referendum in question. Therefore, it is the opinion of this office that in a situation where a petition is filed pursuant to Section 19-3-79 and said petition is certified by the Circuit Clerk within ninety (90) days of a general election but not in time to reasonably allow for thirty (30) days notice by publication prior to the date of said general election, the referendum cannot lawfully be held on that date.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General

PC:mfd