dissenting.
I regret my inability to concur. Defendants herein, Mr. and Mrs. James W. Jackson, were charged separately in a complaint with vagrancy in violation of section 1345, 1927 Municipal Code, Denver. The evidence disclosed that the sole basis for the vagrancy charge was a common-law marriage entered into in Denver and existing over a period of about eighteen months, between a negro male and a white female, asserted to be prohibited by section 2, chapter 107, ’35 C.S.A., quoted in the majority opinion. The portion of the ordinance claimed to be applicable to the charge is as follows: “Section 1345. A vagrant within the meaning and provisions of this article shall be deemed to be: * * * “6. Any person who shall lead an idle, immoral or profligate course of life; * *
Specifically, it is asserted that because defendants were living together as husband and wife, contrary to *201section 2, chapter 107, supra, they were leading an “immoral” course of life. “At common law a vagrant is defined to be a wandering, idle person; a strolling or sturdy beggar; a person, who refuses to work, or goes about begging, and not merely a person who goes about from place to place in the neighborhood without any visible means of support.” 66 C.J., p. 399, §1. Defendants do not come within such a definition. Here the vagrancy ordinance includes immorality. The charge involves a course of life and not punishment for the doing of specific acts. “These statutes should be construed strictly and executed carefully, in favor of the liberty of the citizen.” Section 2, Ibid. Does the common-law marriage here involved, and presumed to be bona fide, amount to a course of life which is immoral within the meaning of section 1345, supra? I think not. The only basis for such a claim is section 2, chapter 107, supra. This section does not expressly prohibit such a marriage; moreover, the proviso in said section makes it possible in “that portion of the state acquired from Mexico” to legally contract such a marriage. The record does not disclose what the marriage customs in that portion of the state are, but it may be assumed that they relate to the racial classifications stated in said section, otherwise the proviso would be useless. It seems, therefore, that we have a geographical immorality within the state, applicable to Denver but not to some other portions of Colorado.
The statutes of this state also provide (section 4, chapter 107, ’35 C.S.A.) that: “All marriages contracted without this state, which shall be valid by the laws of the country in which the same were contracted, shall be valid in all courts within this state; provided, nothing in this section shall be construed so as to allow bigamy or polygamy in this state.” In a substantial number of states and countries marriages such as the one we have before us are legal. When such a marriage is entered into in a state or country where it is valid, such rela*202tionship could not be considered immoral when the parties thereto remove to any place within this state, and would not constitute' a violation of the vagrancy laws. In other words, to violate the vagrancy law, the immorality which it reaches must be of a general nature, applicable to all persons alike, otherwise there also would seem to be a discrimination against both negro and white persons in favor of the Mongolian race, members of which may enter into marriage relationships without any limitation whatsoever.
Such a construction is required of this penal ordinance as would protect the liberties of the individual. In the instant case, although the arresting officers had previous knowledge of this marriage, they waited until the hour of 11 o’clock p.m., March 20, 1941, to invade the home of the Jacksons, without a warrant, and placed them in jail for a period of two days, for investigation, before a bond could be given. This may be designated as vindictive, rather than a careful execution of the vagrancy laws. No authority is cited that such a marriage as is here involved, under a miscegenetic statute, ever has been held to constitute immorality under the vagrancy law, and in my opinion none can be found. Reference in the majority opinion to a former conviction of defendants, about eighteen months prior to the trial in the instant case, is purely gratuitous and absolutely immaterial to the issues.
Counsel for the Jacksons challenge the constitutionality of section 2, chapter 107, supra, on grounds which, in my opinion, are of a serious nature; but since it is my conclusion that the evidence did not sustain the offense of vagrancy, I deem it unnecessary to discuss constitutional questions.
The judgment should be reversed and the case remanded, with directions to dismiss the complaint and discharge the defendants.
Mr. Justice Hilliard concurs in this dissent.