Mississippi Advisory Opinions October 01, 1999: AGO 000013425 (October 1, 1999)

AGO 000013425.

Dear Mr. Sturgeon:

Attorney General Mike Moore has received your request for an Official Opinion from this office and has assigned it to me for research and reply.

Because of the length of your letter, a copy is attached hereto. In sum, your letter states that the office of county prosecuting attorney in Wilkinson County has been filled by appointment by the board of supervisors for many years, but there is no record of a petition being filed or voted upon to make such position appointive. Your letter asks whether, if a person has qualified for the office under Section 23-15-297(d) as a candidate in the Democratic Party primary for the office of county prosecuting attorney in the 1999 first primary, had no opposition in the primary, and is certified as the Democratic Party nominee for the November general election, must the name of the candidate be placed upon the November general election ballot?

Section 19-23-1 of the Mississippi Code of 1972 provides as follows:

There shall be, in the counties where such an office now exists, a county prosecuting attorney, elected in the county at each general election for state and county officers. The several counties in the state shall have the right to come from under and within the provisions of this chapter in the manner hereinafter provided.

The terminology in Section 19-23-1 is substantially similar to two of its predecessors, viz., Section 3910 of the Mississippi Code of 1942 and Section 4220 of the Mississippi Code of 1930. However, the genesis of Section 19-23-1 lies in Chapter 238, Section 1, Miss. Laws, 1916, which provided:

Section 1. Be it enacted by the Legislature of the State of Mississippi, That Chapter 253 of the laws of 1912 be and the same is amended to read as follows:

That the office of county prosecuting attorney is hereby created, and that hereafter there shall be a county prosecuting attorney elected in the county at each general election for state and county officers. However, that the several counties in the state shall have the right to come from under and within the provisions of this act in the manner hereinafter provided.

The provisions of Chapter 238, Section 1, Miss. Laws, 1916, were codified as Section 691 of the Mississippi Code of 1917.

We note that neither the 1916 act nor the 1917 statute contains the words "in the counties where such an office now exists"; these words appear for the first time in the 1930 Code and were carried forward to the 1942 and 1972 Codes.

We have examined the acts of the legislature, both general and local and private, for the years 1916 through 1930, inclusive, and find no enactment which amended the provisions of Chapter 238, Section 1, Miss. Laws, 1916, as codified.

For your review, we enclose copies of the pertinent portions of the 1916 act and of the subsequent statutes.

We further note that Chapter 238, Section 2, Miss. Laws, 1916, contains the legislative scheme for a county to conduct an election to abolish the elective office of county prosecuting attorney. This scheme has been carried forward through the different codes and is now found at Section 19-23-3 of the Mississippi Code of 1972. And in Section 19-3-49 of the Mississippi Code of 1972, the Legislature has provided for employment of an attorney as county prosecuting attorney in counties wherein there is no elected county prosecuting attorney. However, Section 19-3-49 further provides that the contract between a county and an attorney for the duties of county prosecuting attorney "shall be abrogated upon the creation and filling of the office of elected county prosecuting attorney." Finally, Section 19-23-5 provides for the re-establishment of the elective office of county prosecuting attorney in those counties wherein the elective office has been abolished.

It therefore appears that the elective office of county prosecuting attorney may be made appointive only by either act of the legislature or by following the statutory scheme found at present in Section 19-3-23. As stated above, we have found no act of the legislature changing the elective nature of the office, and you have stated factually that no county election has been conducted pursuant to the statutory scheme. And it is obvious that the mere failure of a person or persons to qualify as a candidate for the office, at one or more general elections, does not in and of itself abolish the elective nature of the office. Such a failure merely enables the board of supervisors to avail itself of the discretionary authority in Section 19-3-49 and appoint by way of contract an attorney to fulfill the duties of the office of county prosecuting attorney.

Therefore, based upon the facts stated that the elective office has not been abolished, we opine that the office of county prosecuting attorney in Wilkinson County remains an elective position, and a candidate who has both qualified and received the Democratic Party nomination therefor, must be placed upon the ballot for the November general election by the Wilkinson County election commission.

Very truly yours,

MIKE MOORE

ATTORNEY GENERAL

By Edwin T. Cofer

Special Assistant Attorney General