City of Corinth v. Sharp

• Citation: 65 So. 888,107 Miss. 696
• Decision Date: 13 July 1914
• Docket Number: 17166
• Court: United States State Supreme Court of Mississippi
• Parties: CITY OF CORINTH v. SHARP

65 So. 888

107 Miss. 696

CITY OF CORINTH v. SHARP

No. 17166

Supreme Court of Mississippi

July 13, 1914

APPEAL from the circuit court of Alcorn county. HON. CLAUD CLAYTON Chancellor.

Will D Sharp was charged with a violation of an ordinance of the city of Corinth, and on the hearing in the circuit court he was acquitted; the ordinance under which he was tried being held to be invalid, and the city appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Lamb &amp Warriner, for the appellant.

We respectfully submit that there is only one important question involved in this appeal, and that is, regarding the caption or title to the ordinance; in other words, Does sec. 71, of the Constitution of Mississippi, apply to ordinances adopted by the governing bodies of municipalities?

So far as we have been able to ascertain, this exact question has not been answered by this court, but the courts of other states have held, we believe without exception, that Constitution provisions of this kind do not apply to municipal ordinances. In the case of Richards v. Town of Magnolia, 100 Miss. 249, as well as in many other Mississippi cases, the court has had occasion to discuss the question of titles to ordinances. But we do not think these cases are in point here for the reason that the municipalities, whose legislation was involved, were governed by the general state law, and not by a special charter. Before citing authority in support of our views of the law relating to this question we wish to discuss briefly the case of Sample v. Verona, 94 Miss. 264, because it seems that it was on account of this decision, that the court below held the ordinance to be invalid. In the Sample case this court held that section 71 of the Constitution was mandatory and not merely directory, regarding laws passed by the legislature. The argument was made, as is shown by brief of counsel in the Sample case, that section 71 is merely directory. In answer to this argument, Judge WHITFIELD, who wrote the opinion of the court, said: "In respect to constitutional provisions of this kind it is said in 26 A. & E. Enc. of L. (2nd Ed.), page 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 of that state. But it is somewhat difficult to conceive how any expressed constitutional 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 all statutes invalid 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 court in the Samples case does not say that section 71 of the Constitution applies to municipalities. But does say that section 3406 of the Code applies to municipalities. We are not interested in section 3406 of the Code because it does not apply to Corinth as we will hereinafter point out. Certainly this court would not have held that section 71 of the Constitution applies to municipalities without even mentioning a large number of cases from other courts holding to the contrary, cases containing similar constitutional provisions. We know, of course, that this court does not have to follow the courts of other states, but at the same time we do not believe that this court would decide a case directly contrary to the great weight of authority without so much as even referring to such authority.

This question of titles to municipal ordinances is discussed in 28 Cyc. 378, where it is said: "The provision commonly found in the legislative article of recent state Constitutions that no bills 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 bylaws. 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."

There is a large number of cases cited in support of the text in note 86, page 378, 28 Cyc. We called special attention to the case of City of Tarkio v. Cook, 120 Mo. 1, 41 Am. St. Rep. 678. In this case the court says: "The constiutional provision that no bill shall contain more than one subject, which shall be clearly expressed in its title (Const. Art. 4, sec. 28), of which it is claimed the ordinance in question is violative, was intended to apply only to state legislation, and has no application to ordinances of this city. The article treats exclusively of the legislative department of the state, and the first section declared: The legislative power, subject to the limitations herein contained, shall be vested in the Senate and House of Representatives, to be styled the General Assembly of the State of Missouri. Municipal legislation is thus clearly excluded. 1 Dillon on Municipal Corporations, section 47."

In the note at the top of page 684, 41 Am. St. Rep. it is said that constitutional provisions relative to the title of laws passed by the legislature do not apply to city ordinances. People v. Wagner, 24 Am. St. Rep. 141; State v. Baoile, 21 Am. St. Rep. 413. An exhaustive note on this subject is found at page 192 of 24 (1912-C) A. & E. Ann. cases, and we respectfully invite the court's attention to the same.

Other decisions supporting our contention could be cited but we will not burden this brief with them. We have not found any case wherein it is held that a constitutional provision of this kind applies to municipalities. We come now to the sectons of the Code, 3404, 3405, 3406 and 3407, which the court below held to be applicable to ordinances of the city of Corinth. All we wish to say in this regard is that Corinth does not operate under the Code chapter on municipalities, but operates under a special charter. This being the fact, these sections cannot apply to Corinth because they are not enumerated in section 3441 of the Code of 1906, or in Acts 1910, where those sections of the Code which apply to all municipalities in the state are enumerated.

At pages 352 and 353 of 28 Cyc. a discussion of the subject of enactment of municipal ordinances is found. It is there said: "Municipal bodies usually adopt or recognize parliamentary law as their rules of order and proceedings. Yet the courts, unless prositively required by express statutory provision, will not annul or invalidate an ordinance enacted in disregard of parliamentary rules, provided the enactments are made in the manner required by these statutes." Non-compliance with merely formal requirements in the manner of enacting an ordinance is generally considered by the courts as no grounds 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 this will not be so held when matters of substance are ignored or disregarded by the body. Yet every reasonable intendment of record will be made by the courts in order to give validity to an ordinance which is within the municipal powers.

"Defects in the form of the enacting clause have often challenged the attention of the court with an almost unanimous modern tendency to support the ordinance, 'ut magis val eat quam perat?' In a few cases judgment has gone against an ordinance because the enacting clause was wholly lacking or actually defective in recitals. But the very great weight of authority favors the ignoring of formal defects and the sustaining of bylaws wherever implication and presumption will permit, without violating any recognized rule of law." Publication for ordinance. Since there is no statute or charter provision requiring ordinances of the city of Corinth to be published we do not think there is any merit in the holding of the court below that the ordinance in question should have been published. Regarding the publication of ordinances it is said in 28 Cyc. 359: "The courts of America hesitating between the common-law doctrine that neither writing nor publication is necessary to the validity of a municipal ordinance, and the intuitive and reasonable aversion of a free people to considering as law anything not generally known or officially formulated and promulgated, have brought the law on publication of ordinance into confusion and discord that seems irreconcilable. In the absence of any statutory requirement, the prevailing doctrine seems to be that publication is not an essential requisite of a valid ordinance, but that it may be enforced before publication or without it, but not without vigorous dissent and protest from courts of repute, especially where the ordinance is penal. And even when publication is prescribed, it has been held that the statutes are, merely directory although the weight of authority is that they are mandatory. In some instances this difference of holding is attributable to the phraseology of the statutes; while in others the severity of the penalty seems to have influenced the courts. We respectfully invite the attention of the court to the cases cited in note 19, page 359 of 28 Cyc.

The ordinance is valid in every respect because it is not governed by the constiutional provision herein discussed nor by any of the Code sections. Since Corinth operates under tis own special charter these Code sections cannot apply. We submit that the court below erred...