On a former day of the term the judgment herein was reversed on the grounds stated in the opinion by Presiding Judge Prendergast. I concurred in the reversal on the grounds stated. I respectfully enter my dissent, however, to the conclusion reached by the majority opinion that the ordinance is valid. That ordinance reads as follows:
"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."
There are several points of attack made by appellant. I had thought we had reached a stage in our jurisprudence where it was unnecessary to cite authorities to show that a city can not pass a criminal ordinance unless authority is granted in the charter itself to do so. The authority to create this ordinance is not to be found in the charter of the City of Fort Worth. It is a fundamental proposition that a city can exercise no authority except that granted in its charter. For collation of authorities see Branch's Crim. Law, sec. 209. A charter of a municipal corporation is its organic law and furnishes the measure of its powers. It can exercise no power which the charter does not grant in express words, or which is not necessarily or fairly implied or incident to the powers expressly granted, or which is not essential to the declared objects and purposes of the corporation. Garza v. State, 28 Texas Crim. App., 381. The above is a condensed statement of the rule by Mr. Branch. It aptly and correctly states the law. If there is no authority in the grant or charter to the city to pass the ordinance, it is void. Ogden v. State, 43 Tex.Crim. Rep.; Powell v. State,43 Tex. Crim. 391; Garza v. State, 28 Texas Crim. App., 381; Grace v. State, 9 Texas Crim. App., 381; Campbell v. State, 22 S.W. Rep., 1020; Smith v. State, 51 Tex.Crim. Rep.; Ex parte Smith, 51 Tex.Crim. Rep..
There being no authority granted the City of Fort Worth to pass this ordinance, it would be void from this viewpoint.
Again, the powers granted a city to legislate is strictly construed and in favor of the granting power as against the grantee, and the courts adopt a strict rather than a liberal construction in passing upon the granted power to municipal corporations. Heidleberg v. State, 51 Tex.Crim. Rep.; Ginnochio v. State, 30 Texas Crim. App., 584; Grace v. State, 9 Texas Crim. App., 381; Flood v. State, 19 Texas Crim. App., 584; Lynn v. State, 33 Tex.Crim. Rep.; Powell v. State,43 Tex. Crim. 391.
The charter of the municipal corporation being its organic law, contains the only authority by virtue of which ordinances may or can be created. Where doubt exists as to that power, it must be resolved adversely to the corporation. Mantell v. State,55 Tex. Crim. 456; Lynn v. State, 33 Tex.Crim. Rep.. And the same rules of construction apply to the amount of power whether conferred by general laws or special act. Bohmy v. State, 21 Texas Crim. App., 597. Nor
can special authority granted be enlarged by the general welfare clause. Powell v. State, 43 Tex.Crim. Rep.. It is also the rule that an ordinance broader than the legislative authority granted is invalid. Heidleberg v. State, 51 Tex. Crim. 581; McNeil v. State, 29 Texas Crim. App., 48. It has also been held that the courts can not engraft upon a law something that has been omitted which the courts believe should have been embraced. This would be judicial legislation forbidden by the Constitution, art. 2, sec. 1; Chase v. Swayne, 88 Tex. 218
[88 Tex. 218]. The courts are powerless to supply an omission in the law, or to create a duty which the Legislature has not imposed. Caven v. Coleman, 100 Tex. 467.
Again, the ordinance is in conflict with the State law, and for that reason it is void. The State law provides punishment for illicit intercourse in various and sundry ways; among other things, it is provided adultery and fornication shall be punished. Of course, we understand that fornication and adultery can only be committed by illicit intercourse between the sexes, and where the State law has provided a definition in the punishment, the city is powerless to pass an ordinance in conflict with it, and the Legislature is powerless to authorize the city to do so. This seems to be fundamental as well as contained in the Constitution. It has been held in an unbroken line of authority, that if the city ordinance conflicts with the State law, the ordinance must yield and is void. Mantell v. State, 55 Tex.Crim. Rep.; Flood v. State, 19 Texas Crim. App., 584; Sundstrom v. State, 25 Texas Crim. App., 133; Lynn v. State, 33 Tex.Crim. Rep.; Slaren v. State, 3 Texas Crim. App., 662; Ex parte Gregory, 1 Texas Crim. App., 753. It is the rule, without exception, that an ordinance is invalid which prescribes a greater or less penalty than the State law where the act or omission covered by the ordinance is an offense against the State. McHenry v. State, 103 S.W. Rep., 390; Cross v. State, 44 Tex.Crim. Rep.. It was held that an ordinance which permitted merchants to sell on Sunday at different hours than those permitted by the State law, is void, because in conflict with the State law. Flood v. State, 19 Texas Crim. App., 584; Bohmy v. State, 21 Texas Crim. App., 597; Angerhoffer v. State, 15 Texas Crim. App., 613; Carr v. State, 41 Tex. Crim. 381; Arroyo v. State, 69 S.W. Rep., 503. And it has been also held that power when expressly granted to regulate acts or omissions, which are offenses against the State, must be legally exercised by the city in harmony with the criminal laws of the State. Bell v. State, 32 Tex.Crim. Rep.. The Constitution seems to be all sufficiently clear on this question, without even having cited cases. Article 11, section 5, reads as follows: "Cities having more than five thousand inhabitants may by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters subject to such limitations as may be prescribed by the Legislature; and providing that no charter, or any ordinance passed under said charter, shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of this State," etc. This
Constitution, it occurs to me, ought to control legislative acts and judicial determination. Whatever the courts may think about policies or deficiencies in the law, they can not add to or detract from the organic law, and the Legislature is as much bound by these provisions of the Constitution as are the courts. It may be well enough occasionally to go back and look at first principles; and it may be well enough occasionally to get on speaking terms with the organic law. It may remind us that the three co-ordinate branches of this government are created by the Constitution, and are legally supposed to conform to the law of their creation. Heretofore it has been understood that the Constitution is the superior law, and when attempted legislation conflicts with its restrictions and purports to make a law which is thereby prohibited, it is clearly the duty of the courts to declare such legislation void and to give it no effect. Williams v. Taylor, 83 Tex. 667; Galveston, etc., Ry. Co. v. Gross,47 Tex. 428; Higgins v. Rinker, 47 Tex. 381
[47 Tex. 381]; Watson v. Aiken, 55 Tex. 536. It has also been held by the former great judges of this court that the provisions of the Constitution can not be abrogated or restricted by legislative enactment; they must remain intact as part of the supreme law of the land, in favor of any person accused of crime in this State, until they shall be abolished or altered by the sovereignty of the State exercised in conformity with the Constitution of the United States. Huntsman v. State, 12 Texas Crim. App., 619. It has been held in some decisions by our great judges of the past, that the provisions of the Constitution are mandatory upon the courts. State v. Durst, 7 Tex. 74. It has also been held that constitutional provisions are mandatory, not directory. State v. Sims, 43 Tex. 521; State v. Durst, supra; Cox v. State, 8 Texas Crim. App., 254; Holley v. State, 14 Texas Crim. App., 505; State v. Connor, 86 Tex. 133
[86 Tex. 133]; Higgins v. Bordages, 88 Tex. 458
[88 Tex. 458]; Chase v. Swayne, 88 Tex. 218; Willis v. Owen, 43 Tex. 41; Storrie v. Cortez,90 Tex. 283; Hutcheson v. Storrie, 92 Tex. 685
[92 Tex. 685]; Canon v. Hemphill, 7 Tex. 184; Giddings v. San Antonio, 47 Tex. 548; Hunt v. State, 7 Texas Crim. App., 212; Taylor v. State, 14 Texas Crim. App., 340; Hunt v. State, 22 Texas Crim. App., 396; Hawaii v. Mankichi, 190 U.S. 197; Powell v. State, 17 Texas Crim. App., 345; Kline v. State, 36 Tex.Crim. Rep.; Hatch v. State, 10 Texas Crim. App., 515; Ginnochio v. State, 30 Texas Crim. App., 584; Davis v. State, 15 Texas Crim. App., 475; Whitener v. Belknap, 89 Tex. 273; Lynn v. State, 33 Tex.Crim. Rep.; Titus v. Lattimer, 5 Tex. 433
[5 Tex. 433]; Sun Vapor Electric Light Co. v. Keenan,88 Tex. 197.
The Legislature has no authority to empower the city to suspend any State law or pass any ordinance that may conflict with the State law. The Legislature alone has the power of suspending the operation of general laws, and in exercising the power must make the suspension general, and can not suspend general laws for individual cases, or for particular localities, nor delegate authority to a city to suspend certain laws of the State as to certain individuals in certain localities. McDonald v Denton, 132 S.W. Rep., 823. So it was held under article 361
of the Penal Code, that an ordinance of the City of Dallas regulating, colonizing and segregating the keepers of bawdy houses within a specified district was void. Brown Cracker Co. v. Dallas, 104 Tex. 290, 137 S.W. Rep., 342. Under the Penal Code of Texas bawdy houses are prohibited everywhere, therefore the Supreme Court held in Brown Cracker Co. v. Dallas, supra, that the Legislature could not empower the City of Dallas to regulate, or colonize or segregate bawdy houses in restricted districts. This is in strict conformity to the provisions of article 11, section 5, of the Constitution, heretofore quoted. It has been held under all the authorities that an ordinance of a city authorizing the opening of saloons and the sale of intoxicants on Sunday, except during certain hours, is in contravention of the State law and void. Fay v. State, 44 Tex.Crim. Rep.; Arroyo v. State, 69 S.W. Rep., 504. The Legislature can not delegate to a municipal corporation authority to suspend a State law of Texas. Const., art. 1, sec. 28; Burton v. Dupree, 19 Civ. App., 277; Arroyo v. State, 69 S.W. Rep., 503; Curtis v. Ry. Co., 26 Civ. App., 305; Ogden v. State, 43 Tex. Crim. 532; Ex parte Coombs, 38 Tex.Crim. Rep.; Ex parte Powell, 43 Tex.Crim. Rep.; Fay v. State, 44 Tex. Crim. 381; McDonald v. Denton, 132 S.W. Rep., 823; McDonald v. Denton, 135 S.W. Rep., 1148; see also Harris' Ann. Constitution, pp. 209-212. This ordinance prescribes different punishment for prostitution or illicit intercourse in the City of Fort Worth from that under the State law. It also defines differently from the State law. The City of Fort Worth had no express authority granted it to pass an ordinance with reference to adultery between the races, or fornication, as the case may be, different from what the State law would be on the same subject. Under the State law it would be either fornication or adultery, if the facts were sufficient. This ordinance defines adultery in the City of Fort Worth, or fornication, as the case may be, between the negro and the white race, and limits it to one act, and makes each act a separate offense. Under the adultery statute one act may be sufficient under certain circumstances. It would hardly, therefore, be debatable that this ordinance is in direct conflict with the State law, therefore in violation of all the decisions and of the plain provisions of the Constitution. I do not know whether the city commissioners of Fort Worth passed this ordinance under the theory that it would be a violation for a negro woman to have intercourse with a white man, or a negro man with a white woman as a discrimination against the intercourse between a white man and a white woman. Under the State law they are all put in the same class; it does not stop to inquire whether he or she is black or white, brown or yellow. The criterion is, under the State law, that a man and woman must not live in or commit adultery or fornication. It does not punish one class of women and men and exonerate another class of men and women.
Perhaps I have written more than is necessary, and more than I ought to have written in view of the plain constitutional provisions and the unbroken jurisprudence, but as Judge Roberts once aptly said: "A
frequent recurrence to first principles is absolutely necessary in order to keep precedents within the reason of the law." It is well enough to remind our courts that Judge Roberts stated a great truth, and in drifting times of political excitement and judicial flights it is well enough to occasionally go back to first principles and take our reckoning. He uttered another great truth with which I close: "Whoever undertakes to determine a case solely by his own notions of its abstract justice breaks down the barriers by which the rules of justice are erected into a system and thereby annihilates the law." Duncan v. Magette, 25 Supreme Court Rep. of Texas, at pages 254-255. I have thought in view of these matters it well enough to briefly review these questions and bring up the authorities once more.
For the reasons indicated I agree with the reversal of the case, but have stated these reasons why I can not agree with the majority of the court holding the ordinance valid. It is so clearly invalid that it ought not to be the subject of debate or discussion.