Richards v. Town of Magolia

• Decision Date: 06 November 1911
• Docket Number: 15379
• Citation: 56 So. 386,100 Miss. 249
• Court: Mississippi Supreme Court
• Parties: JAKE RICHARDS v. TOWN OF MAGOLIA

56 So. 386

100 Miss. 249

JAKE RICHARDS v. TOWN OF MAGOLIA

No. 15379

Supreme Court of Mississippi

November 6, 1911

APPEAL from the circuit court of Pike county, HON. D. M. MILLER Judge.

Jake Richards was convicted of unlawful retailing under an ordinance of the town of Magnolia and appeals.

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

Affirmed.

G. Q Whitfield, for appellant.

It is now the contention of the defendant that the ordinance should not have been introduced for the conclusive reason that on its face it is absolutely void, and that an ordinance in precisely the identical language has been condemned and declared null and void by the Mississippi supreme court in the case of Town of Oakland v. Miller, 43 So. 467. The only difference between this ordinance and the ordinance in that case being that the body of the ordinance in that case was void and the title of the ordinance in this case is void. But this can clearly make no difference in view of section 3406 of the Mississippi Code of 1906, which has been held to be mandatory, and which directs the attention of the board of aldermen equally to the title and to the body of the ordinance and declares that "an ordinance shall not contain more than one subject which (one) shall be clearly expressed in its title." The only authority possible for the above quoted ordinance is to be found in section 3410 Mississippi Code of 1906, which expressly limits municipalities to passing a blanket ordinance restricting the offenses to those amounting only to a misdemeanor. The ordinance in the case of the Town of Oakland v. Miller not only included misdemeanors, but all violations of the penal laws of the state of Mississippi. If the title in the Miller case had been valid it could not have rendered the body of the ordinance valid, and neither can the body of the ordinance herein render the void title valid, and so this ordinance must fall with its title as there can be no such thing as a valid ordinance with a void title, and the identical language of the title to this ordinance has been passed upon already in the Miller case and condemned. Furthermore, if this ordinance could possibly be held valid with its title, still, in as much as it was objected to on the ground that it was incompetent, it was the duty of the district attorney to have proved the authority for the enactment of the said ordinance.

The court will notice that the circuit judge allowed the mayor, while testifying, to suspend for some time and make a search for the ordinance or resolution of the board of aldermen of the town of Magnolia electing to come under the chapter on Municipalities of the Mississippi Code, stating to the mayor that it was his opinion that it was "very necessary" and said resolution or ordinance should be found and introduced in evidence.

The court will also notice that the mayor failed after a careful search to find any such resolution, and stated that he had never seen such ordinance or resolution, and could not swear that the town of Magnolia had ever elected to come or not to come under the chapter on Municipalities in the Mississippi Code. And surely in this state of evidence even if said ordinance could be held valid, defendant could not be convicted in the absence of any proof showing the authority of the municipality for the enactment of the said blanket ordinance. 28 Cyc. 395 O (b) and cases cited; Schott v. People, 89 Ill. 195; Alton v. Hartford F. Ins. Co., 72 Ill. 328.

Carl Fox, assistant attorney-general, for appellee.

The court takes judicial knowledge of the fact that the town of Magnolia is acting under the Code chapter. Code 1906, section 3443; Code 1892, section 3038; State v. Govan, 70 Miss. 535, 541.

But if the town of Magnolia had never adopted the Code chapter on Municipalities, this court would take notice of its special charter.

"Courts will judicially notice the charter or incorporating act of a municipal corporation without its being specially pleaded, not only when it is declared to be a public statute, but when it is public or general in its nature or purposes, though there be no express provision to that effect. But the acts, votes and ordinances of the corporation are not public matters, and must, unless otherwise provided by statute, be pleaded and proved. The courts will judicially notice that a city has been incorporated under the general laws of the state." 1 Dillon's Municipal Corporations (5th Ed.), section 231, page 440.

The text is supported by a great number of cases.

In Rosetto v. City of Bay St. Louis, 52 So. 785, this court held that under section 3329, of the Code of 1906, which applies by section 3441, of the Code, to all municipalities whether acting under special charters or the Code chapter. The city of Bay St. Louis which was acting under special charter, had authority to enact a "blanket" ordinance just as was enacted by the town of Magnolia.

Although, as a maatter of fact. Magnolia is under the Code chapter, and has been since 1892, it can make no difference so far as this law is concerned whether it was acting under a special charter or under the Code chapter. In either case, it had authority to enact a "blanket" ordinance, which appears on page 45, of the record. The ordinance provided 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 the said town, be offenses against said town," etc. It was approved April 6, 1909, after the Laws of 1908 became effective. The Laws of 1908, therefore, against the sale of liquor, as well as the sections of the Code which had not been repealed by the Laws of 1908, became ordinances of the town of Magnolia and since these laws are more comprehensive than the ordinances adopted in 1897, by the town of Magnolia, that ordinance was superseded. The entire substance of the ordinance of 1897 is contained in sections 1746 and 1771, of the Code of 1906, as amended by chapter 115, of the Laws of 1906.

It is contended that the "blanket" ordinance is void, because the title of the ordinance is too broad, including felonies as well as misdemeanors. Counsel contends that this is violative of section 3406, of the Code of 1906, and cites Oakland v. Miller, 43 So. 467.

Section 3406, of the Code of 1906, is in part as follows: "An ordinance shall not contain more than one subject, which shall be clearly expressed in the title." The ordinance in the case of Oakland v. Miller, supra, was an attempt to make all crimes under the state laws, offenses against the town of Oakland. It was passed in accordance with section 3410, of the Code of 1906, and was void, of course, because that section authorizes misdemeanors only under the state laws to be made offenses against municipalities. The ordinance in the case at bar applies to misdemeanors only, but its title is "An ordinance declaring all violations of the penal laws of the state of Mississippi" offenses against the town of Magnolia. The case stated, therefore, is not in point. The court there was dealing with section 3410, while here the court is asked to construe and apply section 3406.

The purpose of requiring that the title of ordinances shall express the subject, and of the corresponding constitutional provision, section 71, was, I think, to prevent the enactment of laws and ordinances under purposely misleading titles, deceiving members of the legislature, and of the municipal governing bodies, and leading them to vote for laws they would not otherwise vote for. The purpose was to prevent the slipping of "snakes" into laws and ordinances.

The "blanket" ordinance in question here contains but one subject. Ocean Springs v. Green, 77 Miss. 472. The case of Wingfield v. Jackson, 42 So. 183, in which this court decided the exact question. Section 3406 requires that the "subject . . . shall be clearly expressed in its title." In the title of the ordinance in question, the subject is clearly expressed. No one can be misled by it. It is true that it is broader than the subject of the act, but it points straight to the subject-matter of the ordinance, and to the evils which the section was intended to prevent.

OPINION

MAYES, C. J.

The appellant was charged with unlawful retailing in the town of Magnolia, and was tried and convicted of same in the municipal court. From 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 be 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 be left out of view, in so far as it is claimed to have any bearing 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 board of aldermen of the town of Magnolia, Mississippi, that...