Conviction for violating a city ordinance; punishment, a fine of $125.00.
Sec. 5, Art. 11, of our Constitution and Art. 1165, R. C. S., 1925, prohibit the enactment of any ordinance by any city when such ordinance contains provisions inconsistent with the Constitution or general laws of the state. One ordinance which appellant is charged with violating reads as follows:
"It shall be unlawful for a male person over the age of fourteen years to have sexual intercourse with a female person eighteen years of age or over, other than his lawful wife, within the corporate limits of Wichita Falls, Texas."
The penalty provided is a fine of not less than ten dollars nor more than two hundred dollars. The contention is made that the provisions of the ordinance are inconsistent with the provisions of our statutes defining adultery and fornication. We are of the *Page 523 opinion that such contention must be sustained. Art. 499 P. C. provides:
" '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."
Art. 503 P. C. provides:
" 'Fornication' is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, or a man and woman, both being unmarried."
The punishment for adultery is a fine of not less than one hundred nor more than one thousand dollars, and for fornication not less than fifty nor more than five hundred dollars.
It is well settled that a city ordinance must yield when it is in such conflict with the state law as that both cannot stand. Branch's Ann. P. C. of Texas, sec. 416, page 224, and authorities cited. If the act or omission covered by the city ordinance is a penal offense under the state law a city ordinance which prescribes a greater or less penalty than the state law is invalid. Branch, supra. The subject covered by the city ordinance and Arts. 499 and 503, supra, is that of unlawful relation. Under the state law the act becomes unlawful when habitually indulged in, or when the parties live together and indulge in the act. Under the ordinance one act is unlawful if the male is over the age of fourteen and the female is eighteen or over. The penalty provided in the city ordinance differs from that prescribed in the state law. The same subject — that is, unlawful sexual intercourse — is covered by both the ordinance and state statutes. The conditions under which the act becomes unlawful and punishable are not the same under the ordinances and statutes, and the penalties differ. Hence it follows, we think, that the provisions of the ordinance are inconsistent with those of the state law and cannot be sustained.
In the second count of the complaint it is charged that appellant entered a building for the purpose of having sexual intercourse with a certain woman named. This phase of the ordinance is also deemed in conflict with the state law upon the same subject. The second phase, however, in the opinion of the writer, cannot be classified as a punishable criminal act as it constitutes merely an intent to do some act. The entering of a house with a certain intention in mind is not such description of an offense as meets the law's demand. The offense as charged would be committed by the entrance *Page 524 of any house, although the intended female was not present, provided the accused carry in his mind the intent that at some time or at some place to engage in carnal intercourse with her. Both phases of the offense charged seem invalid for the reason that they are not embraced within any express or implied powers in the charter of the city of Wichita Falls which we understand exists under the Home Rule Amendment to the Constitution. The enumerated powers are contained in Art. 1175 of the Rev. Civ. Statutes. The general provisions in Art. 1176, of the Rev. Civ. Statutes, to the effect that the enumeration shall not preclude the exercise of other powers which exist by implication or otherwise, is not regarded as authority for the exercise of the power in question. There is implied the right to exercise powers only which are incident to those expressly granted. See Ruling Case Law, Vol. 19, p. 768, sec. 75, where it is stated:
"It is well settled that a municipal corporation has only such powers as are clearly and unmistakably granted to it by its charter or by other acts of the legislature, and consequently can exercise no powers not expressly granted to it, except those which are necessarily implied or incident to the powers expressly granted and those which are indispensable to the declared objects and purposes of the corporation."
The exercise of what is known as the police power is not an inherent attribute of a municipal corporation so we understand. See Ruling Case Law, Vol. 19, page 800, sec. 108. Such phases of the police power as a municipal corporation may exercise must come from the legislative grant. See Ruling Case Law, Vol. 19, page 798, sec. 106. In this state the police power authorized in the enabling act is in subdivision 34 of Art. 1175 of the Rev. Civ. Statutes, and reads thus:
"To enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove all nuisances and to preserve and enforce the good government, order and security of the city and its inhabitants."
The judgment is reversed and the prosecution ordered dismissed.
Reversed and prosecution dismissed.