Hunt v. Wright
| Decision Date | 15 October 1892 |
| Citation | 70 Miss. 298,11 So. 608 |
| Court | Mississippi Supreme Court |
| Parties | ABIJAH HUNT v. H. J. WRIGHT |
October 1892
FROM the circuit court of Sharkey county, HON. J. D. GILLAND Judge.
In July, 1892, the appellant, Hunt, being desirous of selling intoxicating liquors in Sharkey county in quantities not less than one or more than five gallons, tendered to appellee Wright, sheriff and tax-collector of said county, the sum of $ 300, prescribed as a privilege tax upon said occupation by the act of 1890, and also tendered the collector's commissions, and demanded the issuance of the privilege tax license, which appellee refused to issue. Thereupon Hunt filed this petition for a mandamus against said tax-collector to require him to receive said money and issue the license.
By § 12 of the act of April 2, 1892, approving, adopting and enforcing the code of 1892, immediate operation was given to certain chapters of the code, among others, to chapter 37 entitled "Dram-shops," and chapter 108, entitled "Privilege Taxes." It is not contended in behalf of appellant that he is entitled, under the facts stated in his petition, to the license if these chapters were validly enacted and put in force. It will be seen that the effect of the petition is to test the constitutionality of the adoption of the code of 1892, and especially with reference to the above mentioned chapters.
Section 1 of the said act of April 2, 1892, commonly known as the enforcing act, is as follows:
"Be it enacted by the legislature of the state of Mississippi, That the annotated code of public statute laws of the state of Mississippi, prepared under authority of the constitutional convention of eighteen hundred and ninety, by R. H. Thompson, Geo. G. Dillard and R. B. Campbell, and reported to the legislature by them, and adopted by the two houses of the legislature, the draft in duplicate whereof, as adopted, being now in the hands of the clerk of the house and the secretary of the senate respectively, be, and the same is hereby, adopted and declared to be the code of Mississippi, to take effect and be of force as therein provided; and the duplicates thereof shall immediately, upon the approval of this act by the governor, be deposited in the office of the secretary of state."
The several provisions of the constitution of 1890 which it is claimed were violated or disregarded by the legislature in adopting the code and enacting the above mentioned chapters, are sufficiently indicated in the opinion. The petition alleges that the duplicate copies of the code referred to in § 1 of the said enforcing act are printed copies, which have been erased, interleaved and altered to such an extent that it is almost impossible to ascertain definitely the meaning of the legislature; that said duplicates bear no sort of resemblance to enrolled or engrossed bills; that they do not, in fact, correspond with each other in every respect; that § 2 of the introductory chapter of the code, as it appears in one of the duplicate copies, provides for the repeal of all former repugnant statutes on the first day of November, 1892, while the other draft of the code provides for such repeal on the first day of July, 1892.
The defendant demurred to the petition, and from a judgment sustaining the demurrer and dismissing the petition Hunt appeals.
Affirmed.
Murray F. Smith and J. Hirsh, for appellant.
The tendency of all recent constitutions has been to restrict the power of legislatures to embrace in one bill incongruous matters, or to pass laws embracing different subjects and affecting varied interest to such an extent as to render it impossible for members to act intelligently upon them. The constitution of 1890 is in line with these tendencies, and contains numerous provisions new to the organic law of this state. From sections 60 to 70, inclusive, will be found various restrictions upon the legislature not heretofore in our constitutions. In Ex parte Wren, 63 Miss. this court has said: "We would not shrink from the investigation of all questions of fact on the existence of which any statute depends."
The whole constitutional scheme contemplates that the governor is a constituent part of the legislature, and that he has a right to have measures presented in the shape of a bill, with a title clearly indicating the subject-matter to be passed on by him. See People v. Bowen, 21 N.Y. 517.
The legislation sought to be invalidated violates every one of the above sections. There was no bill putting the dram-shop chapter into effect according to the intent of the constitution. The title of the enforcing act is not a title indicating clearly the subject-matter to be legislated on. Nor did the constitutional convention of 1890 authorize a code to be prepared such as has been adopted.
The constitutional provisions are not merely directory. They are in line with no less than twenty-six state constitutions. Sutherland on Stat. Const., §§ 76, 79.
The legislature, by resorting to a single enforcing act, placed it beyond the power of the governor to approve a portion of the laws or reject a portion, for the constitution gives no such power, except in cases of appropriation bills. It is impossible to tell which copy of the code the governor acted upon, or how he got possession of one of these so-called authentic copies of the code. Section 1 of the enforcing act, did not contemplate that these, copies should ever leave the hands of their respective custodians until the act should be approved by the governor.
It is true there are a few cases which hold that certain things may become a part of a law by being referred to in it, but there cannot be many cases in which this rule can apply. Cooley on Con. Lim., 169. The cases of Dew v. Cunningham, 28 Ala. 466; Pulford v. Fire Department., 31 Mich. 458, and Loan Association v. Richards, 21 Ga. 592, do not warrant the court in going so far as to hold the legislation under consideration valid.
The court will take judicial notice that the legislature adjourned on the day the enforcing act was passed. Sutherland, Stat. Const., § 181. The passage of the revenue and appropriation bills within the last five days of the session was unconstitutional. Const. 1890, § 68.
T. M. Miller, attorney-general, for appellee.
The objection that the chapters on dram-shops and privilege taxes were passed within the last five days of the session cannot aid the appellant, even if it be conceded that section 68 of the constitution is mandatory on the legislature, since laws regulating the traffic in ardent spirits, though incidentally including revenue, are not revenue laws in any legal or constitutional sense. Burch v. Mayor, 42 Ga. 596. That such provisions are not mandatory, see 51 Cal. 624; 27 Ohio St. 102; Washington v. Page, 4 Cal. 388.
The contention that nothing can be declared law which is not actually embraced in an enrolled bill is not maintainable. It is only required that the matter which is to be law shall have the assent of the law-making power, and that such assent shall be expressed in the form of a bill, duly authenticated and enrolled. Thus, the statute which incorporated a military company by reference to its constitution and bylaws was held valid, notwithstanding said constitution and by-laws were not read in the two houses of the legislature as parts of the statute. Cooley, Con. Lim., 168, 169, citing Dew v. Cunningham, 28 Ala. 466; Bibb County Loan Association v. Richards, 21 Ga. 592; Pulford v. Fire Department, 31 Mich. 458.
The framers of our constitution were familiar with the existing practice of making general as well as particular enactments by reference only. The constitution of 1890 placed no limitation upon this, except that found in section 61, declaring that no law shall be revived or amended by reference to its title only. If the constitution of 1890 prohibits the adoption of the code by reference, the constitution of 1869 did also, and the code of 1880 is invalid. The consequences of such a holding are appalling enough to put an end to the discussion.
The variance between the duplicates is immaterial. It is evident from the connection that November should be read July, as this conforms to the manifest intention and enactment of the legislature. I submit that the appeal is without merit.
Argued orally by Murray F. Smith, for appellant.
This case presents the question whether chapters 37 and 108 of the code of 1892 are in force. One is the "dram-shop" chapter, and the other is entitled "privilege taxes." It is admitted that an act to adopt and make of force the code was duly passed and approved on April 2, 1892, which declared the above-mentioned chapters in force, but the claim is that this was ineffectual, because the chapters were adopted by their titles only, and without their contents being set forth, and because of divers specific objections, having reference to the method of procedure by the legislature in dealing with the several chapters constituting the code; and that these particular chapters were passed within the last five days of the session, and did not receive three-fifths of the votes of the members of each house voting; that there is no enrolled bill in existence containing any part of said chapters, nor any such bill signed by the presiding officers of the two houses and the governor, and authenticated as the constitution requires; that there is doubt and uncertainty as to what is the code adopted, and material variance in certain particulars between two authorized versions of it, but it is not alleged that these versions differ as to the two chapters mentioned.
Most of the objections urged by appellant are fully met by the decision of this court in Ex parte Wren, 63 Miss....
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