Bowen v. Gilleylen , 58 Miss. 813 ( 1881 )

Chalmers, C. J.,

delivered tbe opinion of the court.

It was held in Hardee v. Gibbs, 50 Miss. 802, that under the twenty-fourth section of Art. IY. of our State Constitution the governor could not approve an act of the Legislature after the final adjournment of that body.

The principle, whether right or wrong, is immaterial here, because the act under which this suit was brought became a law independently of the governor’s approval, by his failure to return it to the Legislature within three days after the commencement of its next session. Being officially published as a law, it must be presumed, in the absence of any proof, that it was not so returned, if such presumption be necessary to its validity.

The appeal before us is premature, and must on that account be dismissed. No appeal will lie from the order declining to hear the case in vacation, because it was not a final disposition of it. The order is erroneously construed by appellant as a dismissal of the case. It was only a declination to hear it in vacation. The action of the court was erroneous, because, under the law then existing, it should have been then tried. That law is now so modified by the Code of 1880, sect. 2608, that a trial in vacation rests in the discretion of the judge.

The appeal will be dismissed, and case remanded with writ of procedendo.