USA > Mississippi > Official and statistical register of the state of Mississippi, 1908 v. 3 > Part 28
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Statutes cannot be enacted under this section authorizing employes of a corporation to recover when employes of indi- viduals, etc., similarly situated cannot. Such statutes must be based on some difference inherent in the nature of the business, . which difference serves as a basis for and warrants the classifica- tion. Ballard v. Oil Co., 81 Miss., 507 (34 So., 533).
Such statutes cannot be saved where the language applies to employes of all corporations, by construing it to apply to corpor- ations engaged in a hazardous business; this is not severence between constitutional and unconstitutional provisions, but judicial legislation. Ib.
Where a statute contains on its face the boundaries by which severance can be made between non-interdependent clauses, the court may sever; but the court cannot make such severance by construing the act, according to the evidence in each case, as falling within or without. Ib.
Chapter 105 of the laws of 1900 cannot be assailed as unconsti- tutional because not providing for notice by one who has ap- peared and contested a case through all the courts. Quin v. State, 82 Miss., 75 (33 So., 839).
The statute regulating and restricting the capture of creatures feræ nature not reduced to actual possession is not violative of this section. Ex parte Fritz, 86 Miss., 211 (38 So., 722).
SEC. 15. There shall be neither slavery nor involuntary servitude in this State, otherwise than in the punishment of crime, whereof the party shall have been duly convicted.
(1869, Art. I, Sec. 19.)
SEC. 16. Ex post facto laws, or laws impairing the obligation of con- tracts, shall not be passed.
(1817, Art. I, Sec. 19; 1832, Art. I, Sec. 19;, 1869, Art. I, Sec. 9.)
A statute, passed after suit brought but before verdict deny- ing cost, not applied. Gayden v. Bates, Walker, 209.
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Laws regulating interest should not have retroactive opera- tion. Eastin v. Van Dorn, Walker, 214.
An act of incorporation is a contract. Payne v. Baldwin, 3 Smed. & M., 661 ; Commercial Bank v. State, 6 Smed. & M., 599.
Act of 1843, prescribing mode of procedure against banks for violations of charters, does not impair the obligation of con- tracts. Commercial Bank v. State, 4 Smed. & M., 439. Neville v. Bank, 6 Smed. & M., 513.
A statute requiring banks to pay specie on their obligations after a fixed time is valid. Commercial Bank v. State, 6 Smed. & M., 599.
When the State parts with its property, even by donation, the property is thereby placed beyond legislative control. Com- mercial Bank v. Chambers, 8 Smed. & M., 9.
Where, by its charter, a municipality is authorized to raise money and appropriate it to city purposes, the Legislature can divert the money to a different purpose. Board of Education v. Aberdeen, 56 Miss., 518, overruling Aberdeen Female College v. Aberdeen, 13 Smed. & M., 645, and Aberdeen v. Saunderson, 8 Smed. & M., 663.
The salary of an officer is not within the constitutional pro- tection. Mississippi v. Smedes, 26 Miss., 47; Hyde' v. State, 52 Miss., 665.
The grant of a right to keep a ferry is not a contract. Sullivan v. Supervisors, 58 Miss., 790; Seal v. Donnelly, 65 Miss., 658; Montjoy v. Pillow, 64 Miss., 705 (2 So., 108).
The grant of an exclusive privilege to keep a public wharf is a contract. Martin v. O'Brien, 34 Miss., 21.
A statute which prohibits a corporation from assigning promissory notes, the charter not expressly conferring the right, is valid. McIntyre v. Ingraham, 35 Miss., 25.
Dower interest, before death of husband, not within the pro- tection of the provision. Magee v. Young, 45 Miss., 164.
Marriage is not a contract within the meaning of the constitu- tion. Magee v. Young, 40 Miss., 164; Carson v. Carson, 40 Miss., 349.
To increase exemptions from liability to existing debts is to impair the obligation of the contract with the creditor. Lessley v. Phipps, 49 Miss., 790; Johnson v. Fletcher, 54 Miss., 628. See as to statutes affecting remedies Musgrove v. Vicksburg R. R. Co., 50 Miss., 677.
The right granted by a charter to a railroad to fix its tariff of freights below a maximum is a contract. Stone v. Yazoo R. R. Co., 62 Miss., 607.
It is not in the power of the Legislature to pass a statute of limitations against bonds not due; and where such bonds are
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payable to bearer it cannot require an affidavit of the holder showing a chain of title. Priestly v. Watkins, 62 Miss., 798.
A statute amending a criminal law which precludes a defense available under the former law is, as to crimes committed before the amendment, ex post facto; and so is one changing, but not mit- igating, the punishment previously prescribed. Lindsey .v. State, 65 Miss., 542 (5 So., 99).
The Legislature cannot enlarge the exemptions of property from liability to existing creditors; so to do would be to impair the obligations of contracts. Rice v. Smith, 72 Miss., 42 (16 So., 417).
If two things conjointly constitute a crime and the Legislature makes each an offense the latter act can, under the section, operate only prospectively. State v. Gillis, 75 Miss., 331 (24 So., 25).
A statute providing that juries in capital cases may fix the punishment at imprisonment for life in the penitentiary is not ex post facto, even in its application to offenses committed before .its passage and when the death penalty was fixed by law. McGuire v. State, 76 Miss., 504 (25 So., 495).
A law is not ex post facto which modifies the rigor of the criminal law. Ib.
If the Legislature create a board of public improvements and levy a tax on land, irrevocably devoting the taxes to the satis- faction of the debts which the board was authorized to contract, the State cannot by subsequent act, after the debts are con- tracted, abate the tax or release the land from liability therefor. Forsdick v. Levee Commissioners, 76 Miss., 859 (26 So., 637).
The owner of land damaged by the taking of the land of another is entitled to compensation. Richardson v. Levee Commissioners, 77 Miss., 518 (26 So., 963).
Certain statutes (laws 1875, p. 11; laws 1876, p. '350, and laws 1884, p. 182) held void, in whole or in part, as violating the obligations of contracts. Woodruff v. State, 77 Miss., 68 (25 So., 483).
The provisions of the charter of a railroad company enacted before the adoption of the constitution of 1890 authorizing it to establish and charge for the transportation of person and property within maximum limits prescribed constitute a con- tract between the State and the company, the obligations of which cannot be impaired. Stone v. Yazoo, etc., R. R. Co., 62 Miss., 607; Stone v. Natchez, etc., R. R. Co., 62 Miss., 646; Railroad Commission v. Gulf, etc., R. R. Co., 78 Miss., 750 (29 So., 789).
SEC. 17. Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt
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is made to take private property for a use alleged to be public, the ques- tion whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the ure is public.
(1817, Art. I, Sec. 13; 1832, Art. I, Sec. 13; 1869, Art. I, Sec. 10.)
Compensation must precede the seizure of the property for public uses. Thompson v. Grand Gulf R. R. Co., 3 How. (Miss.), 243; Levee Board v. Dancey, 65 Miss., 335 (3 So., 568).
And the Legislature cannot otherwise provide. Pearson v. Johnson, 54 Miss., 259.
Or limit the time within which the owner may claim compen- sation. Levee Board v. Dancey, 65 Miss., 335 (3 So., 568).
A statute providing for the investiture of the State with title to land because of non-payment of taxes, without a sale, is void. Griffin v. Mixon, 38 Miss., 424.
The private property meant is property of a specific, fixed, and tangible nature, capable of possession and transmission. Commissioners v. Withers, 29 Miss., 21.
The right of eminent domain is an inherent and essential element of sovereignty; this is recognized by the constitution and limitations placed on it; the section is not enabling but restrictive. Brown v. Beaty, 34 Miss., 227.
The Legislature cannot provide for the appropriation of private property to a mere private enterprise, but it is not essential that the enterprise should be exclusively a State undertaking; the right of eminent domain may be exercised for the construction of railroads. Brown v. Beatty, 34 Miss., 227.
The compensation must be in money, and cannot be dimin- ished by supposed benefits resulting from the improvement. Brown v. Beatty, 34 Miss., 227; Isom v. Mississippi R. R. Co., 36 Miss., 300; Penrice v. Wallace, 37 Miss., 172; New Orleans R. R. Co. v. Moye, 39 Miss., 374.
The power of eminent domain and the power of taxation are distinct, and the exercise of the latter is not a taking within this provision. Griffin v. Dogan, 48 Miss., 11; Martin v. Dix, 52 Miss., 53.
But local assessments, beyond the limits of taxation, is, according to what is probably dicta, violative of this provision. Macon v. Patty, 57 Miss., 378.
The Legislature may direct the appointment of commis- sioners by the chancery court to estimate damages. New Orleans R. R. Co. v. Drake, 65 Miss., 621.
For measure of damages, see Richardson v. Levee Commis- sioners, 68 Miss., 539 (9 So., 351).
The Legislature may authorize the guardian of an infant, or person of unsound mind, to agree upon damages to be paid for
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the property of the ward taken for public use. . Louisville, etc., Ry. Co. v. Blythe, 69 Miss., 939 (1I SO., III).
The section enlarges the previous rule, in that it provides that property cannot be damaged (though not taken) for public use without due compensation first made. Alabama, etc., Ry. Co. v. Bloom, 71 Miss., 247 (15 So., 72).
A railroad company cannot escape liability for damages to property, not taken, on the ground that they are only such as necessarily and naturally arise from the proper management and control of its trains. Alabama, etc., Ry. Co. v. Bloom, 71 Miss., 247 (15 So., 72).
The section embraces municipalities and prohibits them from taking or damaging private property without compensa- tion, etc., embracing both direct and consequential damages. Vicksburg v. Herman, 72 Miss., 211 (16 So., 434).
Under the section a county is liable to the owner for damages to land which it wrongfully causes to be covered with water by the improper construction of a public causeway. Raney v Hinds County, 78 Miss., 308 (28 So., 875).
Constitution, Sec. 17, embraces within its inhibition munici- palities; hence, a city, by lowering an established grade, accord- ing to which abutting lots have been improved, must compensate the owner for all damages sustained thereby. Vicksburg v. Herman, 72 Miss., 211 (16 So., 434).
In such case compensation is not limited to the amount necessarily expended, but should include all damages, direct and consequential, sustained by the owner. Ib.
This section does not authorize the courts to determine the necessity for the taking of property in the exercise of eminent domain. Ham v. Levee Board, 83 Miss., 534 (35 So., 943).
A county is not liable for the negligent or tortious acts of a road overseer. Rainey v. County, 79 Miss., 238 (30 So., 636).
To make it liable the board of supervisors must give such directions as make the act of the overseer their act, and mere notice of bad condition and failure to repair does not make it liable. Ib.
This section applied. Richardson v. Levee Commissioners, 77 Miss., 518 (26 So., 963).
Where a municipality closes and vacates an established street, it deprives the owner of abutting lots of a right which is prop- erty, and which cannot be taken except on due compensation being first made as provided in this section. Laurel v. Rowell, 84 Miss., 435 (36 So., 543).
A municipality may by legislative authority charge the costs of paving a sidewalk as a lien on abutting lots of different owners according to the front foot rule, and to do so is not a
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taking of private property for public use without compensation. Wilzniski v. Greenville, 85 Miss., 393 (37 So., 807).
A statute regulating and restricting the capture of creatures feræ naturæ, not reduced to actual possession, is not violative of this section. Ex parte Fritz, 86 Miss., 210 (38 So., 722).
SEC. 18. No religious test as a qualification for office shall be required; and no preference shall be given by law to any religious sect or mode of worship; but the free enjoyment of all religious sentiments and the differ- ent modes of worship shall be held sacred. The rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the state, or to exclude the Holy Bible from use in any public school of this State.
(1817, Art. I, Secs. 3 and 4; 1832, Art. I, Secs. 3 and 4; 1869, Art. I, Sec. 23.)
SEC. 19. Human life shall not be imperiled by the practice of dueling; and any citizen of this State who shall hereafter fight a duel, or assist in the same as second, or send, accept, or knowingly carry a challenge therefor, whether such an act be done in the State, or out of it, or who shall go out of the State to fight a duel, or to assist in the same as second, or to send, accept, or carry a challenge, shall be disqualified from holding any office under this constitution, and shall be disfranchised.
(1817, Art. VI, Sec. 2; 1832, Art. VII, Sec. 2; 1869, Art. I, Sec. 27.)
SEC. 20. No person shall be elected or appointed to office in this State for life or during good behavior, but the term of all offices shall be for some specified period.
(1817, Art. VI, Sec. 12; 1832, Art. I, Sec. 30; 1869, Art. I, Sec. 29.)
If the Legislature create an office and provide that the officer shall hold until his successor is elected, and yet make no provision for an election of a successor, the officer will hold until the next general election, but no longer. Houston v. Royston, 7 How. (Miss.), 543.
SEC. 21. The privilege of the writ of habeas corpus shall not be sus- pended, unless when in case of rebellion or invasion, the public safety may require it, nor ever without the authority of the Legislature.
(1817, Art. I, Sec. 17; 1832, Art. I, Sec. 17; 1869, Art. I, Sec. 3.)
SEC. 22. No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.
(1817, Art. I, Sec. 13; 1832, Art. I, Sec. 13; 1869, Art. I, Sec. 5.)
A conviction or acquittal on an invalid indictment is no bar to
a second prosecution. Kohlheimer v. State, 39 Miss., 548; State v. McGraw, Walker, 208.
. Nor is an acquittal or conviction in a court without jurisdic- tion. Montross v. State, 61 Miss., 429.
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A discharge of the jury upon the return of a verdict, in the absence of the prisoner while in jail, entitles the defendant to a discharge. Finch v. State, 53 Miss., 363.
The offenses must be identical. Smith v. State, 67 Miss., 116 (7 So., 208).
An acquittal under an indictment for murder which does not charge an assault and battery is not good in bar of a subsequent prosecution for the latter offense. Moore v. State, 59 Miss., 25.
A conviction of an offense under a municipal ordinance is not a bar to a prosecution by the State for same act. Johnson v. State, 59 Miss., 543.
It is not violative of the section for the court, upon a convic- tion of an offender, to suspend the sentence except as to costs, and at a future term to impose a fine, etc. Gibson v. State, 68 Miss., 241 (8 So., 329).
Under the section a prisoner is not entitled to a discharge because after the introduction of evidence one of the jurors was reminded that he had been upon the grand jury which found the indictment, and, making the fact known, was discharged by the court. Roberts v. State, 72 Miss., 728 (18 So., 481).
The Legislature can constitutionally confer on municipalities the power by ordinance to punish as an offense against the municipality an act which constitutes a crime against the State. Ocean Springs v. Green, 77 Miss., 472 (27 So., 743).
Section 1412 of the Code, providing that the conviction of a defendant by a justice of the peace for a misdemeanor shall not bar a prosecution for a felony in the same matter, is not violative of this section. Huffman v. State, 84 Miss., 479 (36 So., 395).
SEC. 23. The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.
(1817, Art. I, Sec. 9; 1832, Art. I, Sec. 9; 1869, Art. I, Sec. 14.)
SEC. 24. All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.
(1817, Art. I, Sec. 14; 1832, Art. I, Sec. 14; 1869, Art. I, Sec. 28.)
The Legislature cannot take away the right to an appeal after it has been exercised. Commercial Bank v. Chambers, S Smed. & M., 9.
"Due course of law" requires actual notice to known resident defendants. Brown v. Levee Commissioners, 50 Miss., 468.
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The Legislature cannot discriminate against a class of persons as to incidents of an appeal from the judgment of an inferior court. Chicago R. R. Co. v. Moss, 60 Miss., 641.
A one-year statute of limitations barring actions for the recovery of land does not violate the section. Cameron v. Louisville, etc., R. R. Co., 69 Miss., 78 (10 So., 554).
SEC. 25. No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the State, by him or herself, or counsel, or both.
(1817, Art. I, Sec. 29; 1832, Art. I, Sec. 29; 1869, Art. I, Sec. 30.)
The Legislature cannot discriminate against classes of persons as litigants. Chicago R. R. Co. v. Moss, 60 Miss., 641.
A litigant cannot be excluded from the hearing of the testi- mony of other witnesses in the case because he is himself to testify; but may be made to testify, if at all, before the other witnesses are examined. French v. Sale, 63 Miss., 386.
SEC. 26. In all criminal prosecutions the accused shall have a right to · be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prose- cutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecu- tions for rape, adultery, fornication, sodomy or the crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.
(1817, Art. I, Sec. 10; 1832, Art. I, Sec. 10; 1869, Art. I, Sec. 7.)
The Legislature cannot encroach upon the qualification of jurors so as to endanger their impartiality. Logan v. State, 50 Miss., 269.
The provision as to the nature and cause of the accusation is intended to secure to the accused such a specific description of the offense as will enable him to make preparation for his trial, and also such identification of the offense that he may be insured against a subsequent prosecution therefor. Noonan v. State, I Smed. & M., 562 ; Murphy v. State, 24 Miss., 590; Girard v. State, 25 Miss., 469; Riggs v. State, 26 Miss., 51; Norris v. State, 33 Miss., 373; Newcomb v. State, 37 Miss., 383; Williams v. State, 42 Miss., 328; Riley v. State, 43 Miss., 397; Thompson v. State, 51 Miss., 353.
The provision that no person shall be compelled to give evi- dence against himself excludes confessions extorted by violence, and evidence so obtained cannot be used against the prisoner under any circumstances or for any purpose. Jordan v. State 32 Miss., 382.
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The guaranty of a speedy trial does not preclude the State from a reasonable opportunity to examine and prosecute the charge. Ex parte Jefferson, 62 Miss., 223.
It is essential that venue shall be averred and proven. Thomp- · son v. State, 51 Miss., 353.
The right to be heard does not forbid the court's placing reasonable limitations of time on argument. Lee v. State, 51 Miss., 566; Wingo v. State, 62 Miss., 311.
· All evidence, whether of living witnesses or inanimate objects, must be produced before the jury in the presence of the accused and the court. The Legislature cannot authorize a jury to visit the scene of the crime unaccompanied by the accused and the court. Foster v. State, 70 Miss., 755.
The right of a defendant, under the section, to an "impartial jury" is not infringed by the statute (Code 1906, Sec. 2685), which provides that "any person, otherwise competent, who will make oath that he is impartial in the case, shall be compe- tent as a juror in any criminal case, notwithstanding the fact that he has an impression or an opinion as to the guilt or innocence of the accused, if it appear to the satisfaction of the court that he has no bias or feeling or prejudice in the case, and no desire to reach any result in it, except that to which the evidence may conduct; but any juror shall be excluded if the court be of the opinion that he cannot try the case impartially, etc." Green v. State, 72 Miss., 522.
The section primarily relates to trials of the guilt or innocence of the accused. Whether it relates to hearing of applications for continuances, quaere? Lipscomb v. State, 76 Miss., 223.
One is not an impartial juror within this section who, on his ,voir dire, conceals facts which make him incompetent; such incompetency exists when a juror heard facts from a witness whom he believed inducing a fixed opinion. Shepprie v. State, 79 Miss., 740 (31 So., 416).
Section 1397 of the Code, providing that it shall be sufficient in an indictment for perjury to set forth the substance for the offense charged, does not dispense with the necessity of averring the substance of the issue on the perjury is charged to have been committed, and therefore does not violate this section. State v. Silverberg, 78 Miss., 858 (29 So., 761).
The section applied. Whit v. State, 85 Miss., 208 (37 So., 809).
SEC. 27. No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military when in actual service, or by leave of the court for misdemeanor in office; but the Legislature, in cases not punish- able by death or by imprisonment in the penitentiary, may dispense with the inquest of the grand jury, and may authorize prosecutions before
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justices of the peace, or such other inferior court or courts as may be established, and the proceedings in such cases shall be regulated by law.
(1817, Art. I, Sec. 12; 1832, Art. I, Sec. 12; 1869, Art. I, Sec. 31.)
· Indictments cannot be amended as to a matter of substance, in the absence of a statute authorizing it, without the consent of the grand jury. McGuire v. State, 35 Miss., 366.
The Legislature may authorize the amendment of indictments when they do not deprive the accused of any essential right necessary to the ends of justice. Miller v. State, 53 Miss., 403; Peeples v. State, 55 Miss., 434.
But an amendment to an indictment which changes the offense cannot be made without the consent of the grand jury; identity of offense and of person is necessary. Blumingberg v. State, 55 Miss., 528.
It is not essential that the law shall provide for a trial of mis- demeanors by a jury before justices of the peace. Ex parte Wooten, 62 Miss., 174.
The Legislature may make mayors of municipalities ex officio justices of the peace in and for their municipalities, and give them criminal jurisdiction as such. Bell v. Mckinney, 63 Miss., 187.
The section expressly authorizes the Legislature to dispense with the inquest of a grand jury in the prosecution of misde- meanors. Coulter v. State, 75 Miss., 356 (22 So., 872).
SEC. 28. Cruel or unusual punishment shall not be inflicted, nor excessive fines be imposed.
(1817, Art. I, Sec. 16; 1832, Art. I, Sec. 16; 1869, Art. I, Sec. 8.)
SEC. 29. Excessive bail shall not be required; and all persons shall. before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.
The right to bail after conviction is not within the section. Ex parte Dyson, 25 Miss., 356; Hill v. State, 64 Miss., 431.
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