Thomas McKenzie
Office of the Attorney GeneralOctober 13, 2017
2017 WL 5558444 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2017-00288
*1 October 13, 2017
Re: Clarification of Miss. Code Ann. Section 55-15-81
*1 Thomas McKenzie
*1 City Council Selectman-At-Large
*1 City of McComb
*1 P.O. Box 667
*1 McComb, MS 39649-0667
Dear Mr. McKenzie:
*1 Attorney General Hood is in receipt of your request for an official opinion, and it has been assigned to me for research and reply.
Background
*1 Your request states that you are seeking clarification of Miss. Code Ann. Section 55-15-81, which states, in part:
*1 (1) None of the following items, structures or areas may be relocated, removed, disturbed, altered, renamed or rededicated: Any Revolutionary War, War of 1812, Mexican-American War, War Between the States, Spanish-American War, World War I, World War II, Korean War, Vietnam War, Persian Gulf War, War in Iraq or Native American War's statues, monuments, memorials or nameplates (plaques), which have been erected on public property of the state or any of its political subdivisions, such as local, municipal or county owned public areas, and any statues, monuments, memorials, nameplates (plaques), schools, streets, bridges, buildings, parks preserves, reserves or other public items, structure or areas of the state or any of its political subdivisions, such as, local, municipal or county owned public areas, which have been dedicated in memory of, or named for, any historical military figure, historical military event, military organization or military unit.
*1 (2) No person may prevent the public body responsible for maintaining any of the items, structures or areas described above from taking proper measures and exercising proper means for the protection, preservation, care, repair or restoration of those items, structures or areas. The governing body may move the memorial to a more suitable location if it is determined that the location is more appropriate to displaying the monument.
* * *
*1 Your questions read as follows:
*1 Clarification Request 1: “may move the memorial” Would any such move be required to stay within the municipality which it is currently on display? Such a move outside an existing municipality can be surely viewed as “removing” instead of “moving” since it would no longer be visible anywhere in that community and conflict with Section 1: “relocate, remove”.
*1 Clarification Request 2: “suitable” Is suitable restricted to equal visibility of the current location? There is concern of relocating some monument to ““storage” which would conflict with Section 1: “relocate, remove”.
Analysis and Conclusion
*1 The Mississippi Military Memorial Protection Act, Laws, 2004, Ch. 463, codified at Section 55-15-81, addresses the relocation of certain memorials and monuments.
*1 The questions presented require this office to examine the intent of the language found in Section 55-15-81. Rules of statutory construction are invoked when a statute is ambiguous, has conflicting provisions within it, or conflicts with another statute. Mississippi Gaming Comm'n v. Imperial Palace of Mississippi, Inc., 751 So.2d 1025 (Miss.1999). In construing a statute, the courts must seek to ascertain the legislative intent of the statute in question as a whole taking into consideration each provision of the statute. McCaffrey's Food Market, Inc. v. Mississippi Milk Commission, 227 So.2d 459 (Miss. 1969). Further, all parts of a statute are to be given effect, if possible. Mississippi Public Service Commission v. City of Jackson , 328 So.2d 656 (Miss.1976).
*2 Regarding the relocation of a county-owned monument under Section 55-15-81, this office recently stated:
*2 Reading the entire statute as a whole and giving effect to all of its provisions, it is our opinion that a monument may be “moved” pursuant to its second subsection only to the extent that such movement does not amount to a prohibited “removal” or “relocation” under the first subsection. In the case of the county, for example, a monument may be “moved” within the county jurisdictional limits to some other more suitable location on county property; this may be done upon a finding by the board of supervisors that such location is more appropriate for displaying the monument. A monument may not be ““removed” from the county or from public property. Applying the statute in this manner gives effect to all of its provisions without negating any of them.
*2 MS AG Op., O'Donnell (October 2, 2017).
*2 In response to your questions, we are of the opinion that upon a proper finding by the governing authority that a location is more appropriate for displaying the monument, a monument may be moved to a more suitable location within the jurisdictional limits of the municipality. The suitability of the new location is a factual determination which can only be made by the municipal governing authority; however, we are of the opinion that Section 55-15-81 requires a monument to remain on public property for display and that it may not be removed from the municipality.
*2 We also point out that any alteration of the monument in question requires authorization by the Board of Trustees of the Mississippi Department of Archives and History pursuant to the Mississippi Antiquities Law, Miss. Code Ann. Section 39-7-1, et seq. MS AG Op., O'Donnell (October 2, 2017). See also MS AG Op., Smith (October 2, 2017).
*2 Please let us know if this office can be of further assistance.
2017 WL 5558444 (Miss.A.G.)
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