Opinion No. ( 1996 )

The Honorable Fay W. Boozman, III State Senator 2901 Honeysuckle Lane Rogers, AR 72758

Dear Senator Boozman:

This is in response to your request for an opinion regarding Act 891 of 1995, which is codified at A.C.A. § 26-27-303 (Supp. 1995). Your specific question is "whether Act 891 of 1995 means that there will be either 3or 9 members of the equalization board, or, if Benton County could vote to increase to 5 members." (Emphasis original).

While the language of § 26-27-303, as amended by Act 891, is somewhat ambiguous, it is my opinion that if faced with the question, a court would in all likelihood conclude that the 1995 act authorizes, but does not require, a 9-member equalization board in counties with populations over 79,000. I cannot conclude, however, that there may be 5 members, or any other number between 3 and 9, in such counties.¹ Section26-27-303, as amended, states:

The county equalization board of each county shall consist of three (3) members. However, in counties having two (2) judicial districts, the board shall consist of five (5) members, and, in counties having a population in excess of seventy-nine thousand (79,000), according to the most recent federal decennial census, the board may consist of nine (9) members.

Act 891 substituted "the most recent federal decennial census" for "the 1970 Federal Decennial Census" and substituted "may" for "shall" with respect to the board membership in counties over 75,000. (See 1992 Replacement volume of the Code.) Thus, prior to the 1995 amendment, counties with populations in excess of 79,000 were required to have an equalization board consisting of nine members. Now, the boards in such counties "may consist of nine (9) members." I cannot conclude, particularly given this legislative history, that the General Assembly intended to authorize any number of members, between 3 and 9, when it substituted "may" for "shall." Rather, this language indicates that the legislature has now authorized, but not required, a 9-member board. The legislature could easily have authorized a board consisting of any number up to 9, had it so intended.

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

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh

¹ The statute provides that counties having two judicial districts shall have a 5-member board.