Sample v. Town of Verona, 45 So. 2

Sample v. Town of Verona

45 So. 2 | Miss. | 1908

Whitfield, O. J.,

delivered the opinion of the court.

' The ordinance under which these appellants were convicted .was adopted without any title whatever. Section 3406, Code of 1906, is in the following words:

“An ordinance shall not contain more than one subject, which shall be clearly expressed in its title; and an ordinance shall not be amended or revised unless the new ordinance contain the entire ordinance as revised, or the section or sections as amended, and the .original shall thereby be repealed.”

Section 71 of the Constitution of 1890 is in the following words: “Every bill introduced into the legislature shall have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation. Each committee to ■which a bill may be ref erred, shall express, in writing, its judgment of the sufficiency of the title of the bill, and this, too, whether the recommendation be that the bill do pass or do not pass.”

In respect to constitutional provision of this kind it is said in 26 Am. & Eng. Ency. of Law (2d ed.), p. 572; “In Ohio the peculiar doctrine is maintained that the provision is merely directory to the legislature, giving the courts no power to declare an act invalid because violative thereof, and the California court held the same .way under a former constitution in that state. But it is somewhat difficult to conceive how any express *268constitutional limitation on the power of the legislature can be regarded as directory only, and certainly such provisions are everywhere else deemed to be mandatory, requiring the courts to pronounce invalid all statutes in violation thereof.” Manifestly the provision of our constitution is mandatory in this regard; and so, also, is section 3406 of the Code of 1906 as to municipal ordinances. The ordinance should have been excluded.

Section 1122, Code of 1906, is in the following words:

“Any person who shall vote at any election, not being legally qualified, or who shall vote in more than one county, or at more than one place in any county, or in any city, town, or village entitled to separate representation, or who shall vote out of the district in which he resides, shall be liable to indictment, and, on conviction, shall be fined not exceeding two hundred dollars, or be imprisoned in the county jail not more than six months, or both.” A municipal election is included in the language “at any election.”

But for the error in admitting this void ordinance the judgment is reversed, and the prisoners discharged.

Reversed.