By a special Act of the Legislature approved and in effect March 10, 1909, Special Laws, page 227, Fort 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 *Page 134 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 fine, 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 Fort Worth," says: "Said City of Fort 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 Fort Worth:
"Sec. 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 Fort 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 *Page 135 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 thegood 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 Dil. Mun. Corp. (5th ed.), sec. 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., sec. 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 *Page 136 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 can not 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 can not be evaded, shifted or bartered away without violating a public trust." McQuillin Mun. Ord., sec. 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 is given the large discretion of passing such measures as are necessary to effect the desired result, restricted only by constitutional limitations. What may be necessary and proper to accomplish this result at one time *Page 137 may be unnecessary and improper at another. The exercise of the power belongs properly to the law-making or legislative branch of the sovereign, and it is not within the power of any court to prescribe or say what rules and regulations are needful or necessary to the peace, health, safety and morals of the State. The power belongs to the Legislature to be exercised within constitutional limitations.
"It is our theory of government that, controlled only by constitutional provisions, its three great branches, the executive, judicial and legislative, are co-ordinate and co-equal. It is within the power as well as the discretion of the law-making branch to determine what rules and regulations are best calculated to accomplish the great results comprehended and included within the exercise of the police power. As was said by the court in an Ohio case: `The making of laws is committed to the general assembly; it is the judge of the wisdom and policy of all its enactments, and no court has the right to overrule its judgment, even as to the extent of its own powers, unless it has clearly and beyond doubt exceeded the legislative functions with which it is invested by the Constitution. This is so generally recognized as true as to be regarded as axiomatic upon all questions as to the power of a Legislature to enact a given law.'
"The State has the power to select its agent for exercising the police power or the manner in which it itself shall do this. It is clearly constitutional for the sovereign to delegate to a subordinate public agency, a public (municipal) corporation, the right to exercise this power, and it has been suggested in some cases that the power exists in a municipal corporation proper, independent of any express delegation of the same by the State. It follows, as this is a governmental power, no public (municipal) corporation, not even the State itself, can waive or bargain away the right to exercise it."
Further, page 244, he says: "The good morals of the community should be an especial care of the public authorities, and all regulations or laws passed by the proper authorities, looking to this end come within a valid exercise of the police power."
All civilized nations have always legislated against immoral sexual intercourse as "offenses against public morals, decency and chastity" as designated by our Code, title 10.
The offense made by said ordinance is neither in conflict with, nor antagonistic to our adultery or fornication statutes. On the contrary, it is in harmony therewith and with other of our statutes.
"`Adultery' is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman when either is lawfully married to some other person." P.C., art. 490.
"`Fornication' is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried." P.C., art. 494.
Said ordinance is: It shall be unlawful for any white person and *Page 138 any negro to have sexual intercourse with each other. Each act of intercourse shall constitute a separate offense.
No single act alone can be either adultery or fornication. To make adultery the man and woman must live together and have one or more acts; or if not living together, then the acts must be more than one — of such frequency and at such short intervals — as to amount to "habitual." Fornication is precisely as adultery on those points — the only difference between them is, that if either the man or woman is married to another it will be adultery, if neither is married, it will be fornication. And it makes no difference whether one or both, — the man or woman, — are white or a negro. Whereas, by the ordinance one must be white, the other a negro, and one act alone between such negro and white person constitutes the offense, whether one or both are married to another, or neither is married.
Our laws have all the time recognized, and legislated upon the difference between negroes and whites. Their validity can not be questioned because of that fact. For instance, under said title 10 of our Penal Code prescribing some "offenses against public morals, decency and chastity," article 483 not only makes it a penitentiary offense for a white person and negro to knowingly marry in this State, but also when they have married out of the State to continue to live together as husband and wife, after coming to this, and makes both parties punishable. Prior to the revision of our Code in 1879 the statute restricted the punishment to the white person only — did not authorize the negro to be punished. The validity and constitutionality of said law as it existed prior to 1879, was sustained by this court in a most exhaustive and able opinion by Presiding Judge Ector in Frasher v. State, 3 Texas Crim. App., 263, and reaffirmed by an opinion of Presiding Judge White in Francois v. State, 9 Texas Crim. App., 144. There can be no question of the correctness of those decisions.
Again: Our Code, title 18, chapter 15, requires all our common carriers to provide separate coaches or compartments for whites and negroes, and makes it an offense if they fail or refuse to do so. Our law also requires the railroads to provide separate waiting rooms at their stations for said races. There can be no question of the validity of such laws. It is needless to cite other instances.
It is true the State has never yet made it an offense for a negro and white person to have one act of sexual intercourse. It unquestionably has the right and power to do so. Perhaps the necessity therefor has not appeared to the Legislature to make such offense for the whole State, like it has to the City of Fort Worth for the protection of the morals and good order of the inhabitants of that city.
However, there can be no question but that the State can authorize its municipal corporations to make acts an offense therein under the police power, even though it does not make the same act a State offense. Numerous instances of this might be cited. This principle has been repeatedly held by this court. In Ayres v. City of Dallas, *Page 139 32 Tex. Crim. 603, this court, through Judge Simkins, "judges all present and concurring," held:
"The object of the power conferred by the charter and the purpose of the ordinance itself was not to punish an offense against the criminal law of the State, but to provide a police regulation for the enforcement of good order and peace within the limits of the municipal corporation. It is not a valid objection that the ordinance makes that act an offense which is not defined in the Penal Code of the State. In the preservation of the life, health, good order, and public morals, many acts not unlawful in themselves, or not defined nor punished by the Penal Code, may be prohibited by the ordinances, because, in the judgment and discretion of the corporate authorities, they are injurious to the general welfare of the city."
Again, in Ex parte Hughes, 50 Tex.Crim. Rep., this court held: "So the question is simply, in the absence of any State law on the subject, can the Legislature authorize a municipality by ordinance to make penal the sale of railroad tickets by others than the agents of such railroads. There is nothing in the Constitution prohibiting the exercise of this power, if it is only a delegation of such legislative power as may be exercised by its power to make laws, yet as a well recognized exception to this, is the delegation of such police power as may be properly exercised by cities. Cooley on Const. Lim., pp. 138, 226; Smith's Mod. Law of Mun. Cor., vol. 2, secs. 1319 to 1324, inclusive, also sec. 498."
This brings us to the questions in the trial of this case. There are but two other questions raised by her bills necessary to pass upon. In one she complains the court should have permitted her upon cross-examination of the State's witness Flippen to have him testify that as soon as he gained admittance to the room where she and the white man, Randall, with whom she is alleged to have had intercourse at the time, were locked in and both of them undressed and the bed ruffled up, that Randall said to him he had not had intercourse with her. We are inclined to believe this was res gestae and admissible. Its exclusion under the circumstances of this case might not present reversible error.
We copy her bill No. 3 in full, after omitting only the number, style of the case, and court: "Be it remembered, that upon the trial of the above numbered and entitled cause, and while the witness W.A. Randall, the party with whom it is alleged that defendant had intercourse, was testifying for and in behalf of the defendant, and after it had been proved and shown by the witness Flippen, the witness Knight, and partly by the witness Randall, that said Randall, when said officers entered, had his shoes off and was putting on his pants, after such had already been testified to, and in order to account for such condition in the way of dress of the witness Randall, and in order to rebut the presumption that they had already had intercourse, and that the said Randall was then dressing, said defendant's attorney propounded the following question to said witness Randall: `What were you intending to do if the officers had not entered the house when they did?' Which question was *Page 140 then and there objected to by the county attorney, and which objection was, by the court sustained, to which action of the court the defendant then and there in open court excepted for the reason that if said witness was permitted to answer said question he would say in answer thereto, that if the officers had not entered the house so quickly, that they, defendant and witness, would have had intercourse; that he was undressing for the purpose, but when they heard the officers coming he began to redress; that they were getting ready to have intercourse, but they in fact had not had such an act of intercourse as charged in the complaint. (2) If permitted to make such answer, which said witness would do, if allowed, it would account for the partially undressed condition of defendant and witness; that the State relied upon such fact; that is, upon the fact of being partially dressed, to show that they had already had intercourse, and that the witness Randall was dressing when the officers came, whereas, if said witness would be permitted to answer said question, as he would have done as above stated, it would rebut said presumption and thereby account for their condition of dress. The court sustained the State's objection to said question, and he was not allowed to answer the same; that if he had been permitted to answer, he would have testified as above stated, to which action of the court the defendant then and there excepted for the reasons above stated, and here now tenders this, his bill of exception No. 3, and prays the court to examine, approve and allow the same, and order same filed as a part of the record in this cause.
"Examined and approved, this the 29th day of October, 1914.
"Jesse M. Brown, "Judge County Court, Tarrant County, Texas."
We think it clear, both from the statute and the many decisions of this court, that said evidence was admissible, and the court erred in excluding it. C.C.P., art. 811; sec. 337, Branch's Crim. Law, where he collates some of the cases. For this error of the court in excluding this evidence the case must be reversed and remanded.
Reversed and remanded.
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