
    GLANGES v. STATE.
    (No. 5681.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. Master and servant &wkey;>ll — Statute requiring seats for women employés in restaurants valid.
    Acts 34th Leg. (1915) c. 56, § 2 (Vernon’s Ann. Pen. Code 1916, art. 14511s), making it a crime for a restaurant keeper to fail to provide female employés with suitable seats when not engaged in active duties, held a lawful exercise of legislative authority.
    2. Master and servant <@=>10 — Safeguarding health of women employés within police power.
    The Legislature in the exercise of police power has the right to pass laws to safeguard the health of women employés.
    3. Indictment and information <s&wkey;ll9 — Information for failure to provide women employés in restaurant with seats held not defective.
    Information charging a restaurant keeper with failure to furnish female employés with suitable seats when not engaged in active duties, as required by Acts 34th Leg. (1915) c. 56, § 2 (Vernon’s Ann. Pen. Code 1916, art. 1451k), was not defective, though it also charged a failure to give notice required by such statute; the statute providing no penalty for violation of the provision requiring such notice.
    4. Criminal law <&wkey;369(l) — Sale of rotten meat not admissible in prosecution for failure to provide women employés with seats.
    In prosecution of a restaurant keeper for failure to provide women employés with suitable seats when not engaged in active duties, evidence that defendant had paid a fine for selling rotten meat held inadmissible.
    5. Criminal law <S&wkey;722l/2 — Reference in argument to other crime committed by defendant held ground for reversal.
    In prosecution of restaurant keeper for failure to provide women employés with suitable seats when not engaged in active duties, statement of attorney for state during argument to jury that defendant had sold rotten meat with maggots in it, where court refused to withdraw such remark on defendant’s written request therefor, held ground for reversal.
    Appeal from Tarrant County .Court; Hugh L. Small, Judge.
    Gus Glanges was indicted for failing and refusing to provide and furnish seats to be used by his female employes when not engaged in active duties, and for failure to give notice to all females employed by posting in a conspicuous lilace the notice prescribed in the statute, and from the judgment rendered, he appeals.
    Reversed and remanded.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The prosecution is for violation of the provisions of chapter 56 of the Acts of the Thirty-Fourth Legislature (Vernon’s Ann. Pen. Code 1916, arts. 1451h-1451m), the specific charge being that the appellant, a keeper of a restaurant, “did fail and refuse to provide and furnish suitable seats to be used by his female employés when not engaged in the active duties,” and that he did not give notice to all of the females so employed by posting in a conspicuous place notice described in the statute.

In motion to quash the indictment, attacks are made upon the validity and constitutionality of the law.' We are furnished with no brief or citation of authorities supporting the criticism, and we are aware of no reason that the act is not a lawful exercise of legislative authority. The right of the Legislature, in the exercise of the police power, to pass laws to safeguard the health of women employés has been so often affirmed by the courts that it cannot now be considered an open question. Ruling Case Law, vol. 16, 480; Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551, 13 Ann. Cas. 957; Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct. 342, 59 L. Ed. 628, L. R. A. 1915F, 829; Commonwealth v. Riley, 210 Mass. 387, 97 N. E. 367, Ann. Cas. 1912D, 388; Riley v. Commonwealth of Mass., 232 U. S. 671, 34 Sup. Ct. 469, 58 L. Ed. 788. We find nothing in the provision questioned in the present law which would condemn it as unreasonable. In a statute of the state of Indiana requiring employers of coal miners to furnish washing facilities, the same principle was involved. This statute was upheld by the Indiana courts (Booth v. State, 179 Ind. 405, 100 N. E. 563, L. R. A. 1915B, 420, Ann. Cas. 1915D, 987), and by the Supreme Court of the United States (Booth v. Indiana, 237 U. S. 391, 35 Sup. Ct. 617, 59 L. Ed. 1011). A similar statute was - upheld in State v. Reaser, 93 Kan. 628, 145 Pac. 838, and in People v. Solomon, 265 Ill. 28, 106 N. E. 458.

The information adequately charges a violation of the part of the statute which penalizes a failure to provide and furnish suitable seats. The fact that it also charges that there was a failure to give notice as required by the statute does not invalidate the pleading, though the statute provides no penalty for a violation of the last-named provision. The penal clause omits reference to the notice, and says:

“Who shall fail, or neglect, or refuse, to provide suitable seats as provided in section 2 of the act.”

Restaurants, by the terms of the statute, are in a separate class from mercantile establishments, and are not included in the clause in the statute which exempts from its operation mercantile establishments in towns in which the population is 8,000 or less. Ex parte Brown, 21 S. D. 515, 114 N. W. 303.

The court erred, in failing to sustain the objection to the question propounded by the prosecution:

“How long has it been since you paid a fine here for selling rotten meat, meat that had maggots in it?”

This was directed to the appellant while he was on the stand, and he replied that he paid a fine, but knew nothing about the rotten meat. We know of no rule of law that would render, under the facts of this ease, the inquiry a proper one. In the argument, the attorney for the state said:

“He [referring to the accused] sold rotten meat, meat with maggots in it.”

The appellant objected to this, and.made a written request of the court to withdraw it from the jury. This request was refused, as shown by the bill. The remarks were obviously of a nature to impair the rights of the appellant. They contained a damaging statement of fact not based on the evidence, and require a reversal. Branch’s Annotated Texas Penal Code, §§ 362, 364.

• For the reason pointed out, the judgment is reversed, and the cause remanded. 
      <@r=jFor otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     