52 Mo. 424 | Mo. | 1873
delivered the opinion of the court.
The plaintiff’s petition alleged an act of incorporation investing plaintiff with power to sue. A demurrer was interposed and sustained, and the important question that arises in the, case is the validity of the act of the Legislature incorporating the plaintiff as a city.
The objection taken is that- there is no enacting clause to the law, and it is contended that this omission renders it wholly invalid. The Constitution of this State (Art. 4, § 26,) declares that the style of the laws of this State shall be : “Be it enacted by the General Assembly of the State of Missouri as follows and we are now to determine whether the provision is imperative or directory only. There is no doubt as to the regular passage of the act, its approval.by the Governor, and its publication by the authority of the Slate.
In the early period of English history there was no fixed and certain style adopted in-the passage of laws. It shifted and took different shapes in difieren t reigns. But the most of the American States, when they entered upon a new order of things, adopted a style which they declared should be pursued.
If the provision is to be held as directory only, and not mandatory, the rule is that it may be disregarded without rendering the act void. The rule declared by Lord Mansfield in Rex vs. Loxdale (1 Burr, 447,) that, “there is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory” has been followed by a long train of cases, and is now universally recognized. And where the language used does not import that it is of substance, the clauses of a law directing its observance are regarded as directory simply, for that is directory which is not of the essence of the thing to be dpne.
In the case of the Pacific Railroad vs. the Governor, (23 M.O., 353,) which was an application for a mandamus to the Governor, requiring him to issue the bonds of the State to a railroad company under a law alleged by him to have been passed by the Legislature over, his veto, without the observance of the forms prescribed by the Constitution, this Court held that, notwithstanding the constitutional forms were no-complied with, still the law was not void. In the opinion it is said : “The course required to be observed in the performance of an act is not always of its essence or vitality. When an act is directed to be done in a particular way, the direction may be merely directory — that is, it is not of the essence of the act, but the act may stand in law notwithstanding the direction was not strictly observed. This is a familiar principle. * * * * All we design to hold is that there are forms to be observed in the enactment of laws; that the members of the Legislature are sworn to observe those forms, and yet, if they are violated, the Constitution never intended that their acts should be void.”
The Constitution uses the same language that it has employed
The very question presented, arose in a case in Maryland The Constitution in that State is the same as ours in regard to the style of laws. A law was there passed omitting the required style, and it was decided that the Constitutionalprovision was directory only and not mandatory, and that the omission of the enacting clause did not render the act unconstitutional and void. (McPherson vs. Leonard, 29 Md., 377.) So in Mississippi, it is held that the provision is directory and that it is not essential that there should be a literal adherence to the formula of words prescribed by the Constitution, but that the acts need only ’show the authority by which they were adopted, and that it was the intention of the Legislature that they should have the effect of laws. (Swain vs. Buck, 40 Miss., 268.)
After a diligent search I have failed to find any case holding that a law was unconstitutional or void on account of an omitted or imperfect enacting clause.
The enacting clause is certainly not of the essence of the lawn It furnishes no aid in its construction, and its provisions are as clear and intelligible without it as they are with it. It is not material in indicating by what authority the law was enacted, for being passed in due form by both Houses of the Legislature and. properly approved by the governor, with no allegation of suspicion attached to it, it comes before the courts bearing sufficient evidence that it is really and truly a law.
To hold that a law supported by these sanctions was uot valid because certain formal and immaterial words were omitted, would be sacrificing substance to mere form, which I think the courtis not justified in doing.
Aside from these views, the act we are now considering does not pretend to be an original act. It is to reduce the
'When a former provision is continued in a revised law, it operates only as a continuance of its existence, and not as an original act. (St. Louis vs. Alexander, 23 Mo., 309.) The Court, therefore, I think, erred in holding the act of incorporation set ont in the petition invalid. The other questions raised in regard to the ordinances cannot be decided upon demurrer if they are objectionable; the objection must be raised by answer.
Let the judgment be reversed and the cause remanded.
