Opinion No. ( 1993 )

The Honorable Claud V. Cash State Representative Route 2, Box 45 Trumann, AR 72472

Dear Representative Cash:

This is in response to your request for an opinion on the following question:

The City of Trumann proposes to annex a portion of Willis Township. Who are entitled to vote on this annexation?

1. The people of the city?

2. The people to be annexed?

3. The voters combined from the city and the annexed area?

You have not indicated under which Code section the city plans to proceed in annexing the territory. A review of the relevant Code provision would be necessary in order to fully address your question. Because your question presumes, however, that an election will be called, I assume that the city will in all likelihood be proceeding under A.C.A. § 14-40-301 et seq., as amended, or A.C.A. § 14-40-607 (1987), both of which require an election.

It is clear that under both A.C.A. § 14-40-303, as amended¹ (governing election procedures under that subchapter) and § 14-40-607 (1987), the question of annexation is submitted to the qualified electors of the city and to the qualified electors of the area to be annexed. Thus, both the electors of the city and of the area to be annexed are entitled to vote.

With regard to your reference to "the voters combined from the city and the annexed area," I assume that you are inquiring as to the majority vote requirement. Section 14-40-303(b)(1)(B)(i) states that the county clerk shall certify the election results "[i]f at the election a majority of the qualified electors voting in the election shall vote for the annexation." The annexation ordinance will, on the other hand, be null and void "[i]f a majority of the qualified electors voting on the issue at the election vote against the annexation." A.C.A. §14-40-303(b)(1)(B)(ii). This language stands in contrast to A.C.A. § 14-40-607(a)(2), which states:

If a majority of the qualified electors in the municipality voting on the issue or a majority of the qualified electors in the area proposed to be annexed voting on the issue vote against the annexation of the area, then the area shall not be annexed.

Section 14-40-607 thus clearly requires that the annexation be approved by both a majority of the qualified electors in the cityand a majority of the qualified electors in the area proposed to be annexed. It is my opinion, however, that § 14-40-303 requires a majority vote of the voters combined from the city and the area to be annexed. This conclusion is compelled by the language regarding "a majority of the qualified electors voting in the election." Reference should therefore be made to the Code section that is applicable in this particular instance in order to determine the vote requirement.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ Act 356 of 1993 amended § 14-40-303. The amendment does not, however, impact your question.