STATE v. TENANT

AVERY, J.:

The Legislature is empowered under the organic law to restrict an individual by direct enactment in the exercise of such dominion (612) and control over his own house or premises as may result in injury to others, provided the prohibitory or restraining statute does not upon its face discriminate in favor of one person or class of persons over others. And, though the law-making power can unquestionably create a municipal corporation and delegate legislative authority to it, it cannot clothe the creature with power to do what the Constitution prohibits the creator from doing. Cooley Const. Lim. (4 Ed.), 198; Weith v. Wilmington, 68 N.C. 24. Police power may be exercised by the sovereign State through the General Assembly in derogation of the absolute right of the individual only for the general benefit, and by means of statutory provisions that upon their face operate indiscriminately upon and are enforcible by the same species of process against all persons and classes. S. v. Moore, 104 N.C. 721; S. v. Chambers, 93 N.C. 600; S. v. Stovall, 103 N.C. 416; Diset v. West Virginia, 129 U.S. 114; Mugler v. Kansas, 123 U.S. 623. "Towns and cities cannot use their power to create monopolies for the benefit of private individuals, nor can they pass by-laws imposing penalties that do not operate equally upon all citizens of the State who may come or live within the corporate limits." S. v. Pendergrass, 106 N.C. 664; S. v. Summerfield, 107 N.C. 898; 1 Dillon, sec. 380 (313).

It is equally clear that if an ordinance is passed by a municipal corporation which, upon its face, restricts the right of dominion which the individual might otherwise exercise without question, not according to any general or uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the governing authorities of the town or city, it is unconstitutional and void, because it fails to furnish a uniform rule of action and leaves the right of property subject to the despotic will of aldermen who may exercise it so as to give exclusive profits or privileges to particular persons. Newton v. Belger, 143 Mass. 598; Richmond v. Dudley, 129 Ind. 112; Yick Wo v. (613) Hopkins, 118 U.S. 356; May v. People, 12 Col. App., 157; Baltimore v. Rodeck, 49 Md. 217; Anderson v. Wellington, 40 Ks., 173; In re Frazee, 63 Mich. 396; Tugman v. Chicago, 78 Ill. 405; Braceville v. Doherty, 30 Ill. App. 645; Barthel v. New Orleans, 564; Bolls v. Goshen, 117 Ill. 221; Lake View v. Lutz, 44 Ill. 81; Horr Bemis Mun. Police Ordinances, sec. 13; Evansville v. Martin, 41 Ind. 145.

The first ordinance relied upon to support the indictment provides: "That no person, firm or corporation shall build or erect within the limits of the city of Asheville . . . any building of any kind or character, or otherwise add to, build upon, or generally improve or change any building, without having first applied to the aldermen and obtained a permission for such purpose." Whether the landowner proposes to erect on his premises a storehouse, opera-house, dwelling, stable, kitchen, henhouse, and whether he proposes to use fire-proof or combustible material in the structure, he is required to apply to the aldermen of Asheville for a permit, and if the ordinance is valid he incurs liability for violation of it the moment he begins the work of building. Moreover, if he should add a porch, a tower, or improve by digging a cellar the dwelling-house occupied by him, he would subject himself to like danger, though he should use no material in making the improvement not generally considered fire-proof. But while the right to prohibit the erection of a building without regard to the material to be used in constructing it has been held unreasonable, the most objectionable feature of the ordinance is the reservation by the aldermen of the right to refuse the application of one landowner and grant that of another, arbitrarily and despotically, when, for all material purposes, the two apply for precisely the same privilege.

We concede that the constitutionality of an ordinance (614) prohibiting the erection of wooden buildings, or buildings with wooden or shingle roofs, in the thickly settled portions of towns, and requiring a license before beginning to build such structures, has been usually, if not universally, sustained where the ordinance laid down a general rule that precluded the possibility of discrimination and favoritism in granting the license so as to limit the privilege to certain persons. Codes v. Miller, 33 Am. Rep., 330; Tiedeman Police Power, 439, 440. We admit, also, that there are authorities which maintain the doctrine that even where contracts have been made with builders for the erection of such wooden buildings, before the passage of a valid ordinance, the builder is considered as having entered into the contract, subject to the right of the municipality to enact a prohibitory by-law and annual his contract at any time before he begins to build and expend money, that he may lose, if prohibited from finishing. Knoxville v. Bird, 12 Lea (Tenn.), 121.

In Yick Wo v. Hopkins, 118 U.S. 356, the Court held that it was a violation of the 14th Amendment (in withholding the equal protection of the law) to pass and enforce ordinances in the city of San Francisco which forbade persons to erect scaffolds on roofs, or carry on laundries in that city, without license or the consent of the supervisors, because it conferred upon the municipal authorities arbitrary power, at their will and without regard to the competency of the person applying, or the propriety of the place selected for carrying on the business." No matter, therefore, if the circumstances of a particular case were such that an applicant seemed about to create a nuisance, he could not be punished under a void ordinance, or one which prescribed no rule for the exercise of discretion on the part of city aldermen in restricting persons in the enjoyment of their rights of property or person. S. v. Webber, 107 N.C. 962; S. v. Hunter, 106 N.C. 796.

In Newton v. Belger, supra, not only is the principle enunciated, (615) but the ordinance is almost identical with that under consideration in the case at bar. The prohibiting portion was as follows: "No person shall erect, alter, rebuild, or essentially change any building or any part thereof, for any purpose other than a dwelling-house, without first obtaining, in writing, a permit from the board of aldermen." The Court said: "It does not merely forbid the erection of any building which is hazardous, and which exposes other persons or property to danger. . . . On the contrary, it gives them the power, by refusing a permit, to prevent the erection of any building, except a dwelling-house, for any reason which may be satisfactory to them. Under the ordinances they may refuse a permit because, in their opinion, it is desirable that certain parts of the city shall be used for handsome dwelling-houses, and that all buildings for the purpose of trade shall be excluded, though in no sense dangerous." . . . What is there in the ordinance under consideration to prevent the aldermen, if they were so inclined, from prohibiting the construction of any houses, in a defined boundary, except costly dwellings, and thereby enhancing the value of the property, in which they have a personal interest? We have no idea that any such purpose exists, but we cannot sanction the enforcement of an ordinance by means of which the aldermen may at any time not only entertain, but act upon, such an improper motive.

Upon the principle which we have announced, an ordinance fixing the amount of city tax on theaters, roller-skating rinks, etc., at such sum of money as the council should determine in each particular case was held void, because it gave power to discriminate "between persons engaged in like business." Bills v. Goshen, supra. An ordinance aimed at the Salvation Army, which forbade any persons or society to parade a street, singing or beating drums, etc., without having first (616) obtained the consent, in writing, of the mayor or, in his absence, of the president of the city council, was declared void upon the same ground. Anderson v. Wellington, supra.

In Horr v. Bemis, supra, sec. 263, the rule as to the proper form of ordinances in reference to granting license is laid down as follows: "As has already been stated, no discretionary powers should be vested in officers whose duty it is to execute the provisions of ordinances, and the rule is applicable to this class of ordinances. The ordinance itself should specify every condition of the license, and the officer should be merely entrusted with the duty of issuing licenses to all who comply with the prescribed conditions." In State v. Hunter, supra, this Court held an ordinance unconstitutional because it clothed a policeman with an arbitrary discretion to determine what was a reasonable time to wait for persons to move off the sidewalk before making an arrest.

S. v. Yopp, 97 N.C. 477, stands upon a very different principle. While the Legislature has no right to enact a law forbidding all men in a certain section from building houses of any kind on their own land, it unquestionably is empowered to forbid riding bicycles on a particular road or street altogether, because the lives of other persons and the safety of the property of others are imperiled by their use on account of the danger of frightening horses attached to vehicles. Sic utere tuo ut non alienum laedas. Having power to prohibit using bicycles on the road entirely, the Legislature had the same power to authorize a person or tribunal to grant a license, when the road should be clear of vehicles, that it has to provide for licensing the sale of spirituous liquors.

"Where the nuisance consists not in the building itself, but in the use to which it is put, the building cannot be destroyed." Tiedeman, supra, 441. "If a house is used for the purpose of a trade or business by which the health of the public is endangered, the nuisance may be abated by removing whatsoever may be necessary to prevent the exercise of such trade or business." Ibid. The same principle (617) must necessarily apply to construction as to destruction of buildings on account of health. So that if the ordinance, instead of being void for want of a rule governing the exercise of discretion by aldermen, had provided in plain terms that no person or corporation should be allowed to erect a building without a license, at any point within the city, if it were understood that the person or corporation proposed to use the house for a hospital for the infirm or sick, and that the same individual or corporation had admitted a patient suffering from typhoid fever into a hospital under their management on another portion of the same lot, the ordinance would have allowed an unreasonable interference with the rights of landowners, because it is not necessary, in order to protect health, to prohibit a person from building a house according to any plan on his own land, but the end may be reached by prohibiting the reception of patients who are suffering from infectious or contagious diseases. The act incorporating the Asheville Mission Hospital, with which the defendant contracted to build, empowered the corporation to erect one or more hospitals "for unfortunate and destitute persons," and invested it with authority to make by-laws, etc. Private Laws 1891, ch. 306, secs. 3 and 4. So that the officers might, while the building was in the course of erection, have enacted a by-law providing that only aged and infirm persons who were destitute should be admitted. Instead of using their authority to prevent the spread of disease, the ordinance leaves it in the power of unprincipled officers to locate hospitals entirely with a view to enhancing the value of certain property. The erection of the hospital in a section where there were only tenement-houses might enhance values of property in the vicinity, while if located in a more fashionable quarter it might be considered an eyesore.

(618) It seems, however, that the corporation, in the case at bar, have already a building on the same lot, which had been used as a hospital, and had asked a permit to add another and thereby furnish additional accommodation for the sick, and had passed a by-law forbidding the reception of patients suffering from contagious or infectious diseases, except by special arrangement with the managers, under the advice of the physician. But cases of typhoid fever had been admitted to that hospital. We do not know, judicially, whether that disease is infectious or not; but if the city, instead of the Mission Hospital, will enact just such a prohibitory by-law applicable to all hospitals within the corporate limits, that question can be determined in the appointed way. Arkadelphia v. Clark, 27 A. E. Corp. Cases, 586. After the license to build was refused, the work of building was commenced and prosecuted for some time under a contract previously made by the defendant with the Mission Hospital. Subsequently (28 August, 1891) the ordinance providing that a further prosecution of such work, after notice, should subject all mechanics, contractors, etc., to a penalty, was passed, and the warrant, which charges specifically a violation of the said ordinance of 28 August, 1891, was issued on 5 October, 1891. If it be conceded that the first ordinance was void because it prescribed no general rule for the exercise of discretion in granting permits, the ordinance passed after the contractor had expended money in disregard of the void by-law, and providing simply that all persons engaged in erecting such building should be subject to a penalty for failure of the owner of the property to get a permit under the old arbitrary law, would be subject to the same objection, if not of others equally as fatal to its enforcement against the defendant.

There was error in the ruling of the court that the defendant was guilty.

New trial.

Cited: Rosenbaum v. New Bern, 118 N.C. 97; S. v. Williams, 146 N.C. 631; S. v. Eubanks, 154 N.C. 632; S. v. Lawing, 164 N.C. 495; S. v. Bass, 171 N.C. 782; Clinard v. Winston, 173 N.C. 359; Brunswick-Balke Co. v. Mecklenburg, 181 N.C. 388.