Richards v. Town of Magnolia

56 So. 386 | Miss. | 1911

Mayes, C. J.,

delivered the opinion of the court.

The appellant was charged with unlawful retailing in the town of Magnolia, and was tried and convicted of same in the municipal court. Prom this conviction he appealed to the circuit court, and was again tried and convicted, and from this conviction prosecutes an appeal to this court.

So far as the testimony is concerned, it may he stated that the verdict of the jury is in accordance with the proof, and the action of the court in refusing to exclude the evidence and direct a verdict for the defendant was as it should have been. The only question in this case which requires discussion is that which challenges the validity of the ordinance under which appellant was convicted. Two ordinances are found in the record, one passed in 1897 and one passed in 1909; but the ordinance of 1909 is the ordinance under which appellant was tried and convicted, and the ordinance of 1897 may he left out of view, in so far as it is claimed to have any hearing on this case. The ordinance involved is as follows, viz.:

“An ordinance declaring all violations of the penal laws of the state of Mississippi under the Code of 1906 be'and the same are hereby declared in violation of the ordinance of the'town of Magnolia.

“Section 1. Be it ordained by the mayor and hoard of aldermen of the town of Magnolia, Mississippi, that all offenses under the penal laws of the state of Mississippi, amounting to a misdemeanor, shall, when said offenses are'committed within the corporate limits of said town, be offenses against the said town, and upon conviction thereof the same punishment shall be imposed as provided by the laws of the state of Mississippi with regard to such offense against the state, not in excess of the maximum penalty.

“Sec. 2. For good and sufficient cause this ordinance shall take effect and be in full force from and after its passage.

“Approved and adopted April 6, 1909.

“John A. Lamkin, Mayor.”

It is argued by counsel for appellant that this ordinance is void, because the title declares “all violations of the penal laws of the state” a violation of the ordinances of the town; whereas, the law under which this ordinance is permitted to be passed, and the ordinance itself passed in pursuance of the law, only allows the town to punish offenses against the penal laws of the state as offenses against its ordinances when such offenses are misdemeanors only. It is claimed by appellant that because the title to this ordinance is broader than the ordinance, and broader than any ordinance that could be passed, the ordinance itself is void, though the finished ordinance is in strict conformity to the powers conferred on the town under the general law, and the case of Oakland v. Miller, 90 Miss. 275, 43 South. 467, is cited as decisive of this question. But we think there is a wide difference between the facts of the case referred to and the facts of the case now on trial. In the Oakland v. Miller case, the ordinance itself attempted to confer on the municipality the power to punish for “all acts punishable under the laws of Mississippi,” whether felonies or misdemeanors, and this court held the ordinance void because it attempted to clothe the mayor with jurisdiction over felonies, as well as misdemeanors. There was no question raised in that case as to the validity of the ordinance on account of its title, but because the complete and finished ordinance conferred on the mayor a jurisdiction in excess of that which was given him under the law. In the case on trial the finished ordinance, the thing containing the assumed powers of the municipality, and by which the municipal officers are governed in imposing penalties, is strictly in accord with the power granted to the municipality. It is true that section 3406 of the Code of 1906 provides that “an ordinance shall not contain more than one subject, which shall be clearly expressed in its title;” but this section of the Code is in no way violated by this ordinance.

In the first place, the statute of the state (section 3410) gives express authority to the municipality to provide, “by a general ordinance of the municipality,” that all offenses under the penal laws of the state, amounting, to a misdemeanor, shall be offenses against the city. "Where the statute itself says that so many subjects as are comprehended under the penal laws of the state, and amounting to a misdemeanor only, may be comprehended in one ordinance, adopting same as the municipal ordinances ■of the town, it can hardly, be contended that, when the municipality obeys the statute and passes the ordinance, the ordinance is void, because in conflict with section 3406, Code of 1906, prohibiting an ordinance from containing more than one subject. Such contentions were settled in the cases of Winfield v. City of Jackson, 89 Miss. 272, 42 South. 183, and Chrisman v. City of Jackson, 84 Miss. 787, 37 South. 1015.

In the next place, there is nothing in the title that can malre the ordinance void. The statute only requires that the subject of the ordinance “be clearly expressed” in the title. Surely this ordinance clearly expresses its subject in the title. It is true the title is broader than the ordinance, but the title deals with all subjects contained in the ordinance. The title professes to deal with “all penal laws” of the state; whereas, the ordinance only deals with such as are “misdemeanors.” The title is not deceptive or misleading. It calls attention to the fact that the ordinance is dealing with one subject, to wit, the penal laws of the state; and the ordinance itself is within the power of the municipality to deal with that subject. The very sweep of the title is more likely to call attentipn to those enacting it to the body of the ordinance than would a more restricted title. The object of the law in regard to having the title clearly expressed in the ordinance is to prevent surprise or fraud on those engaged in enacting the ordinance. It is to fairly apprise the legislators and the people of the subjects of legislation contained in the body of the legislative act or ordinance, to the end that those engaged in enacting the law may know how to vote intelligently, and those expected to obey it may be fully apprised as to what it is. If the title fairly gives notice of the subject of the ordinance, so as to reasonably give notice and lead to an inquiry into the body, that is all that is necessary. See State v. Bryan, 50 Fla. 293, 39 South. 929.

The case of Mobile Transportation Co. v. City of Mobile, 128 Ala. 335, 30 South. 645, 64 L. R. A. 333, 86 Am. St. Rep. 143, expresses what we conceive to be the true rule which should control in the construction of section 3406, Code 1906. The Constitution of the state of Alabama required that “each law should embrace but one subject which shall be described in the title.” The requirements of the Alabama Constitution are practically the same as is required in section 3406 of the Code of 1906 as to municipal ordinances, and the court said: “The object of this provision of the Constitution was to prevent surprise and fraud, in passing laws under misleading titles. It should not, therefore, be construed so as to defeat, by too technical an application, legislation not clearly within the evil aimed at. If the title of an act is single, and directs the mind to the subject of the law in a way calculated to direct the attention truly to the matter which is proposed to be legislated upon, the object of the provision is satisfied. In such case the generality of a title, not defining the particulars of the proposed legislation, would be more apt to excite general attention than otherwise, since the general words would give warning that everything within their limits might be affected, and thus draw the attention of the whole body of legislators, while narrower words would only interest those concerned with the matters specially named. It is therefore held that the generality of the title is no objection, if it may comprehend the particulars of the body of the act, and that the act must be upheld if the subject may be comprehended in the title.”

But it is further argued that section 3410, Code of 1906, only applies to municipalities operating under the Code chapter on municipalities, and that the record in this case does not show that the town of Magnolia is operating under the Code chapter. The answer to this is twofold. In the first place, if it be conceded that this court will not take judicial notice of the character of charter under which a municipality in this state in operating, as to which we say nothing, the court does take judicial notice of the public statutes of the state. When the Code of 1892 was adopted and became the law of the state, the town of Magnolia was an incorporated town. By section 3035 of the Code of 1892 it was provided that, from and after the date the chapter on municipalities became operative, every municipality should exercise the powers conferred on municipalities in accordance with the Code provisions, but left any existing municipality the right to decline to be governed by the Code, provided it signified its purpose to continue to operate under its old charter by a resolution of its corporate authorities, entered of record and certified to the secretary of state within twelve months after the law became operative, that such existing municipality elected not to be controlled by the Code laws. If any existing municipality failed to do this, it became subject to the Code laws. Nothing in. this record shows that the town of Magnolia declined to come under the Code chapter, and this court will presume, in the absence of such showing, that the town is under the general law of the state.

Again, since the adoption of the Code of 1906, section 3329 of the Code, which by virtue of section 3441 is made applicable to all municipalities, gives the power “to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state.” This was not a part of the Code laws under section 2938, Code 1892, which is the section corresponding to section 3329, Code 1906, but was first placed in the Code of 1906, though first adopted as the law of the state by chapter 75, acts Special Sess. 1898.

It follows, from the above, that- this case is affirmed.

Affirmed.