Strauss v. State

• Decision Date: 20 January 1915
• Docket Number: (No. 3381.)
• Citation: 173 S.W. 663
• Parties: STRAUSS v. STATE.
• Court: Texas Court of Criminal Appeals

173 S.W. 663

STRAUSS v. STATE.

(No. 3381.)

Court of Criminal Appeals of Texas.

January 20, 1915.

Dissenting Opinions, February 16, 1915.

Appeal from Tarrant County Court; Jesse M. Brown, Judge.

Minnie Strauss was convicted of a misdemeanor, and she appeals. Reversed and remanded.

Mays & Mays, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

By a special act of the Legislature, approved and in effect March 10, 1909 (Special Laws, p. 227), Ft. Worth was incorporated as a city of more than 10,000 inhabitants with the commission form of government. It had been before then an incorporated city under such special charters. In said act, which is its charter, it and its governing commissioners are given special power and authority to do many things unnecessary to mention, but among others are these provisions:

"The board of commissioners of said city shall be vested with the power and charged with the duty of making all laws or ordinances not inconsistent with the Constitution of this state, touching every object, matter and subject within the local government instituted by this act."

"The board of commissioners shall have the power to pass, amend or repeal all ordinances, rules and police regulations not contrary to the laws and Constitution of this state, for the good government, peace and order of the city and the trade and commerce thereof that may be necessary or proper to carry into effect the powers vested by this charter in the corporation, the city government or any department or officer thereof; to enforce the observance of all such rules, ordinances and police regulations and to punish violations thereof by fines, penalties and costs; but no fine or penalty shall exceed two hundred dollars ($200)."

Then chapter 9 of the charter, headed "Additional Powers of the City of Ft. Worth," says:

"Said city of Ft. Worth shall have the power: * * *

"Sec. 4. To enact and enforce ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove nuisances of all kinds and descriptions, and to preserve and enforce the good government, order and security of said city and of its inhabitants, and have and enjoy general police powers of a city; and the enumeration of other powers elsewhere herein and the specifications of same shall not be regarded as limitations upon the general powers herein conferred upon the city by this section."

Under this power and authority said city by its commissioners, duly enacted, and had in force, when this offense was alleged to have been committed, this ordinance:

"An ordinance prohibiting sexual intercourse between white persons and negroes and providing a penalty.

"Be it ordained by the city commissioners of the city of Ft. Worth:

"Section 1. It shall hereafter be unlawful for any white person and any negro to have sexual intercourse with each other, within the corporate limits of the city of Ft. Worth. Each act of intercourse shall constitute a separate offense.

"Sec. 2. Any person violating the provisions of this ordinance shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined in any sum not exceeding two hundred dollars."

By proper complaint appellant was charged with the violation of this ordinance, in that she, a negro woman, on May 11, 1914, in said city, unlawfully had sexual intercourse with W. A. Randall, a white man. She was first tried and convicted in said city court, and on appeal to the county court was again convicted, and now appeals to this court.

She attacks said ordinance on these grounds, because: (1) It contravenes and is in direct conflict with the state law of adultery and fornication; (2) it is broader than legislative authority; (3) neither express or implied authority is given in the charter to enact it; (4) it discriminates between the races; (5) it makes the violation thereof depend solely on color; and (6) it contravenes the Constitutions of both Texas and the United States. We will not discuss each of these grounds separately. But what we have to say embraces all of them.

In our opinion the ordinance is valid, and no ground of her attack can be sustained. The provisions of said charter quoted above, especially the last, gives said city, for its local government, as to all acts which can be made minor offenses, all the police power of the state, in clear and unmistakable language. We think it could not be made clearer. We have no constitutional provision whatever which, either directly or by implication, prohibits or prevents this. It was not necessary for the charter to specially name any or all of the specific acts. The city could make an offense embraced in the police power under said charter provisions. The provisions themselves show clearly the Legislature intended to confer, and did confer, on said city, all police power of the state, as to all acts which could be made a minor offense, which could be given to one of its municipal corporations for its local self-government. This could not be construed to mean the power to make acts felonies. Judge Dillon says:

"Under authority `to ordain and publish such acts, laws, and regulations, not inconsistent with the Constitution and laws of the state, as shall be needful to the good order of the city,' it can, says Howard, J., `subject to these restrictions and certain statute regulations, establish all suitable ordinances for administering the government of the city, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations.'" 2 Dill. Mun. Corp. (5th Ed.) § 718.

"Power `to ordain and publish such acts, laws, and regulations, not inconsistent with the Constitution and laws of the state, as shall be needful to the good order of the city,' authorizes the city to establish all suitable ordinances for administering the government of the city, the maintenance of peace and order, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations. Reasonable ordinances for these purposes are necessary, and they are generally sustained by the courts, * * * though passed by virtue of general charter power, or authority conferred by the general welfare clause." McQuillin, Mun. Ord. § 434.

In section 433 he says:

"Generally, cities may make and enforce within their limits all such local police, sanitary, and other regulations designed to promote the health, safety, comfort, convenience, and welfare of the local community, which are not in conflict with Constitution or the general laws. Crowded urban populations require numerous police regulations which would be unreasonable in rural districts or sparsely populated territory. This difference was quickly recognized, and from the first establishment of local corporations, invested with civil government, the local community has been empowered to enact and enforce all sorts of such regulations which restrict more or less the liberty of the individual, his personal movements, and the use of his property. These are absolutely essential to life in crowded centers. From the beginning their necessity has been sanctioned by the public authorities, and they have been sustained generally by the courts. The police power primarily inheres in the state, but if the state Constitution does not forbid the Legislature may delegate a part of such power to the municipal corporations of the state, either in express terms or by implication."

It is also said:

"The proposition cannot be denied that organized government has the inherent right to protect health, life, and limb, individual liberty of action, private property, and legitimate use thereof, and provide generally for the safety and welfare of its people. Not only does the right exist, but this obligation is imposed upon those clothed with the sovereign power. This duty is sacred, and cannot be evaded, shifted, or bartered away without violating a public trust." McQuillin, Mun. Ord. § 430.

It would be a useless task to undertake to cite all the authorities establishing what is embraced in the police power. Many decisions of this court give definitions and instances of it. None of them would exclude the idea that such an offense as prescribed by said ordinance was not within such power, and none of them intimate it would not be. As illustrative of what all the authorities establish as police powers as applicable to municipal corporations, we will quote 1 Abbott on Mun. Corp. p. 202 et seq.:

"Government should have for its end the welfare, convenience, and advantage of the people, and the advancement of all their material, intellectual, and moral interests. One of its important objects, if not the most important, is the protection and preservation of life and limb and the property and good morals of the public. That particular and inherent power of the state which has for its purpose the accomplishment of these results is termed the `police power.' It includes and comprehends within its exercise all these general laws and internal regulations which are necessary to secure the peace, good order, health, and comfort of society. It is that power of the state more than all others which affects most intimately the private and personal interests and relations of each individual. It is to a certain extent an indefinable power, and the limits of its exercise are never clearly established. No general principle of law can be stated which will even with reasonable accuracy define its application or its exercise. Certain purposes or certain results are to be accomplished by the state; a certain exigency arises affecting the peace, the health, or the comfort of society; and to the Legislature directly or as it may lawfully delegate the power...