City of Corinth v. Sharp, 65 So. 888

City of Corinth v. Sharp

65 So. 888 | Miss. | 1914

Reed, J.,

delivered the opinion of the court.

An affidavit was made before the mayor of the city of Corinth charging appellee with assault and battery, in violation of an ordinance of that city. On the hearing *703in the circuit court, the ordinance which appellant was charged with violating was held invalid, and he was acquitted.

We give below the entries on the minute book of the city of Corinth for the year 1899, showing the passage of the city ordinance in question:

“Minutes City of Corinth, June 5,1899, page 65. May- or’s office, Corinth, Miss., June 5th, 1899.

“The board met in regularly monthly session, called to order by Mayor Henry. President: T. E. Henry, mayor, C. W. Burgess, E. B. Hollingsworth, Dr. T. Bor-roum, aldermen.

“June 5, 1899, page 69.

“Be it ordained by the mayor and board of aldermen of the city of Corinth that it shall be unlawful for any person to commit an assault or an assault and battery upon another within the incorporate limits of the city of Corinth; and any person violating this ordinance shall be guilty of an offense against said city and shall be fined in any sum not exceeding fifty dollars for each offense, and shall stand committed until fine and costs are paid.

“June 5, 1899, page 77. (Minutes signed by)

“T. E. Henry, Mayor,

“S. L. Ward, Clerk.”

Appellee objected to the introduction of the ordiance and assigned the following reasons therefor:

“ (1) There is no number to the ordinance.

“ (2) There is no caption or heading to the ordinance.

“(3) Because it does not show that it was first reduced to writing and passed by a yea and nay vote.

“ (4) Because it was never published.

“ (5) Because the book in which the ordinance or purported ordinance was spread does not recite the time of passage, nor does the minute book show the adoption of the ordinance and the page thereof.”

The record in this case shows an agreement by counsel that the city of Corinth operates under a special charter, *704and not under the Code chapter of this state on municipalities. The charter is contained in the act of the legislature of Mississippi passed March 12, 1884, and is chapter 403 of the Laws of 1884.

It is contended by appellee, that the formalities for the enactment and record of ordinances by municipalities provided in sections 3404, 3405, 3406, and 3407 of the Code of 1906 were not complied with when the ordinance was passed. It will be seen that the objections to the ordinance are in the main, based npon the provisions of the above sections.

Appellee is wrong in this contention. The code chapter on municipalities does not apply to the city of Corinth. See section 3440, Code of 1906; section 3035, Code of 1892. It was not necessary for the mayor and hoard of aldermen of the city to follow the requirements of the sections referred to in enacting the ordinance. The city of Corinth received its power for local self-government, including the authority to enact by-laws, ordinances, and local laws from its charter granted by the act of the legislature. We quote from the charter (chapter 403 of Acts of 1884) to show the power delegated by the legislature relating to the city’s government and to the making of necessary rules and laws:

“The legislative and contracting power of said city of Corinth shall he vested in the city council, composed of the mayor and aldermen, with power to make and establish rules for its own government;'to appoint the time of its meetings, and the manner of being convened in special meetings, ... to appoint a city clerk to register its proceedings and ordinances; ... to ordain all needful laws and regulations for preventing and suppressing disorderly conduct in individuals, and unlawful assemblies within said city. . . . The said mayor and aldermen in council shall have power to enact all ordinances and by-laws, not inconsistent with the laws of this state, or of the United tates, which may be necessary and *705proper to enforce the powers delegated to them by this charter; also to prescribe in said ordinances such fines and forfeitures for violations of said laws and ordinances as they may deem expedient not exceeding fifty dollars for each offense, and imprisonment not exceeding ten days for a single offense, and all such ordinances to repeal, or modify at pleasure. ’ ’

There are no rules given in the charter specifying the mode for the enactment of ordinances. The legislature, in the charter, granted to the city the power to adopt its own rules for its own procedure and its own government. There are no limitations placed on the city in this respect. There are no prescribed formalities.

It is argued by appellant that the ordinance did not comply with the requirements of section 55 of the state Constitution, providing for the yeas and nays on questions, and section 71, requiring a bill to have a title indicating clearly the subject-matter of the proposed legislation. These constitutional provisions have no application to municipal ordinances. They are limited to state legislation. Dillon on Municipal Corporations (5th Ed.), sec. 72; People v. Wagner, 86 Mich. 594, 49 N. W. 609, 13 L. R. A. 286, 24 Am. St. Rep. 141.

We take the following from 28 Cyc., p. 378, on the effect of constitutional provisions:

“The provision commonly found in the legislative article of recent state Constitutions that no bill shall be passed containing more than one subject, which shall be clearly expressed in the title, has been consistently construed by the courts to have no application to municipal ordinances and by-laws. Unless therefore there is some charter or statutory provision requiring it, no title need precede an ordinance; or, if a title is superscribed, an error in it will not vitiate the ordinance; nor will duplicity in the body of the ordinance invalidate it. ’ ’

The municipal board was given the power by its charter to adopt its own rules of government; it is not shown *706in the record of .this case that any rules were adopted. The proof is wholly silent regarding this. However, if there were rules for procedure not fully followed, “a mere failure to conform to parliamentary usuage will not invalidate the action when the requisite number of members have agreed to the particular measure.” Mc-Quillin on Municipal Ordinances, par. 115. The same author, in the same paragraph of his excellent treatise on the Law of Municipal Ordinances, says:

“The action of municipal bodies exercising legislative functions should not be overthrown upon technical rules or strict construction of parliamentary law where the facts of such action can be gathered from the record.” Continuing, he says:

“In reference to the action of county boards, the supreme court of Wisconsin has timely observed: ‘It will not do to apply to the orders and resolutions of such bodies nice verbal criticism and strict parliamentary distinctions, because the business is transacted generally by plain men not familiar with parliamentary law. Therefore their proceedings must be liberally construed in order to get at the real intent and meaning of the body. ’ In like manner liberal construction is often applied to the action of councils in enacting ordinances.”

“The mayor and councilmen, or other officers of a municipal corporation, are not usually .selected because of their learning in the law, their observance of its forms, or their instruction in fine distinctions. If their action is to be subjected to rigid criticism, much of it done in good faith, and in the spirit of their defined authority, would be avoided. Woodruff v. Stewart, 63 Ala. 206, 215.”

In 28 Cyc., pp. 352 .and 353, we find the following regarding formal requisites in the enactment of an ordinance :

“Noncompliance with merely formal requirements in the manner of enacting an ordinance is generally consid*707ered by the courts as no ground for declaring it void. Indeed, any form of words signifying clearly the will of the governing body that a by-law exists which the corporation was competent to enact has been held to be sufficient. . . . But the very great weight of authority favors the ignoring of formal defects, and the sustaining of by-laws wherever implication and presumption will permit, without violating any recognized rule of law'.”

No particular form is prescribed in the charter of Corinth for expressing an ordinance. The form in this case clearly indicates the terms and objects of the ordinance. In an early New Hampshire case, Lisbon v. Clark, 18 N. H. 234, the record showed the ordinance or local law by the statement that it was “voted, to collect fines of one dollar of all persons riding or driving across the village bridge or salmon-hole bridge, faster than a walk, agreeably to an act passed January 13, 1837.” In approving the form of this law, the court said:

“No particular form was prescribed by the statute in which the law should be engrossed, and there seems to be no law or custom restraining the towns from selecting such form of expression as suits them provided enough be contained to signify their will that the by-law exists, and to indicate the terms of it, and the objects to which it should apply.”

The ordinance in the case at bar expresses fully its purpose. It states with clearness the misconduct condemned, makes it an offense against the city when committed within its limits, and prescribes a definite punishment. Its very words, “be it ordained by the mayor and board of aldermen of the city of Corinth,” shows it was enacted by the city council, vested with authority by the charter to enact such law for proper government.

We see no merit in any of the grounds in the objection interposed by appellee. The numbering of the ordinance and the placing of a caption or heading thereon, the reducing to writing and passing by a yea and nay vote, are *708formalities, not required by the charter, nor by any statute, nor by any rule, applicable. The failure to do these thing’s will not invalidate the ordinance in this case.

Nor do we see any valid objection to the ordinance because it was not shown to have been published. There is no provision in the charter requiring the publication of the ordinance. Mr. Dillon, in his Municipal Corporations (5th Ed., vol. 2, sec. 603), says:

££In the absence of a statutory or charter provision directing that ordinances be published before they take effect, no publication is necessary, and ordinances take effect immediately without it.” .

This text is supported by the decision in the case of In re Guerrero, 69 Cal. 88, 10 Pac. 261.

The proof in this case contains an extract of the minutes of the city, which were duly signed by the city clerk. The charter gives the council the authority to appoint a city clerk to register its proceeding’s and ordinances. It appears that this ordinance was duly registered by the clerk. The copy in this case from the book where the ordinance is recorded plainly shows that it was adopted, the time of its passage, and the page of its record. Its enactment and record is sufficiently established.

We do not find that there has been any violation of any provision of the charter, or of any statute, or law, in the enactment of the ordinance. The court erred in sustaining the objection interposed to the introduction of the ordinance. It should have been admitted in testimony.

Affirmed.