Sample v. Town of Verona

• Citation: 48 So. 2,94 Miss. 264
• Decision Date: 25 January 1909
• Docket Number: 13,711
• Court: United States State Supreme Court of Mississippi
• Parties: JAMES J. SAMPLE ET AL. v. TOWN OF VERONA

48 So. 2

94 Miss. 264

JAMES J. SAMPLE ET AL. v. TOWN OF VERONA

No. 13,711

Supreme Court of Mississippi

January 25, 1909

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

Sample and another, "two gentlemen of Verona," appellants were tried and convicted on the charge of illegally voting at a municipal election in violation of a municipal ordinance were each fined $ 10, and appealed to the supreme court.

The appellants were separately charged, before the mayor's court of the town of Verona, with illegally voting at a certain municipal election "contrary to the ordinances of said town in such cases made and provided, and against the good order and peace thereof." Having been convicted they severally appealed to the circuit court, where the two cases were tried jointly. The ordinance which appellants were charged with violating, and which is referred to in the opinion of the court, is as follows:

"Be it ordained by the mayor and board of alderman of the town of Verona, that all offenses under the penal laws of the state Code of 1906, amounting to a misdemeanor shall be offenses against the town of Verona, in whose corporate limits the offense may have been committed, and upon conviction thereof the same punishment shall be imposed by the town of Verona as is provided by the laws of the state not in excess of the maximum penalty which may be imposed by a municipal corporation. For reasons satisfactory to the mayor and board of alderman, this ordinance shall be effective from and after its passage."

The evidence discloses that the two appellants, who were negroes were not registered voters of Lee county at the time they voted in the municipal election held in Verona for election of aldermen.

Reversed.

Anderson & Long, for appellants.

The appellants were convicted on a charge of illegally voting in a special election held in the town of Verona for the election of two alderman. The conviction was under a general ordinance purporting to make all violations of the state law, of a less grade than felony, violations of the ordinance of the town of Verona. Strenuous objection was made by appellants in the court below to the introduction in evidence of the ordinance, and also of the municipal minute book, because the ordinance had no title or heading as required by Code 1906, § 3406; and also because neither the ordinance nor the minute book containing the ordinance showed that Code 1906, § 3405, was complied with in the adoption of the ordinance.

The two code sections above cited are mandatory. Winfield v. Jackson, 89 Miss. 272, 42 So. 183; Chrisman v. Jackson, 84 Miss. 787, 37 So. 1015; Ocean Springs v. Green, 77 Miss. 472, 27 So. 743; Kemp v. Hazlehurst, 80 Miss. 443, 31 So. 908; Morris v. Greenwood, 73 Miss. 430, 19 So. 105. Even if the code sections are not literally followed, there must be a substantial compliance with their provisions. Swan v. Buck, 40 Miss. 268. There can be no substantial compliance with Code 1906, § 3406, when the municipal ordinance has no title whatever. 21 Am. & Eng. Ency. Law (2d ed.), 974, 975; San Antonio v. Micklejohn, 89 Tex. 79.

Code 1906, § 1122, is the only statute in our state providing for the punishment of any one illegally voting in an election; and the appellants were tried for violating this code section. Even if the ordinance of the town had been properly enacted, still the appellants could not legally be held, because Code 1906, § 1122, does not make illegal voting in a municipal election an offense. The statute does not mention municipal elections. Commonwealth v. Howe, 114 Mass. 144; Nettles v. State, 49 Ala. 35.

George Butler, assistant attorney-general, for appellee.

Code 1906, § 3404, provides for the style and publication of all municipal ordinances. And by Code 1906, § 3408, the mayor and board of aldermen are authorized to order a codification or revision of the municipal ordinances, from time to time. By Code 1906, § 3410, it is prescribed that, "when so provided by a general ordinance of the municipality," offenses against the state laws, less than felony, may be made offenses against the municipality. These several code sections must be construed together. In the codification of the municipal laws the legislature hardly contemplated that each and every section should be given a title. Nor was it contemplated that each and every offense was to be embraced within the title of the general ordinance provided by Code 1906, § 3410. The manifest purpose of Code 1906, § 3406, is to prevent the joining together of several independent and incongruous matters in one ordinance and to prevent deception of the public or members of the council by means of provisions in...