Thе Legislature- is empowered under the organic law to restrict an individual by .direct enactment in
*612
the exercise of such dominion 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 faсe 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 рower to do what the Constitution prohibits the creator from doing. Cooley Const. Lim. (4th ed.),
198; Weith
v.
Wilmington,
It is equally clear, that if .an ordinance is passed by a municipаl 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
*613
Mass., 598;
City of Richmond
v.
Dudley,
Northern Reporter, vol. 28, No. 13, p. 312; Yick Wo ,
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. changе 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, hen-house, 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 Aider-men 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.
*614
We concede that the constitutionality of an ordinance 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,
In
Yick Wo
v.
Hopkins,
*615 In the case of Newton v. Belger, supra, not only is the same principle enunciated, but the ordinance is almost identical with that under consideration in the case at bar. The prohibiting portiоn 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 Aider- men.” 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 thе 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 ordinanсe under consideration to prevent the Aider-men, 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 Aider-men may at any time, not only entertain, but act upon such an improper motive.
Upon the principle which we have annоunced, an ordinance fixing the amount of city tax on theatres, 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. City of Goshen, supra. An ordinance aimed at the Salvаtion Army, which forbade any persons or society to parade a street, singing or beating drums, etc , *616 without having first 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. City of Wellington, supra.
In Horr v. Bemis, supra, section 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 clothеd 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.
The case of
State
v.
Yopp,
“ Where the nuisance consists, not in the building itself, but in the use to which it is put, the building cannot be destroyed.” Tiedman, supra, 441. “If a house is used for the purpose of a trade or business by which the health оf *617 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 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 pоint 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 mаnagement on another portion of the same lot, the ordinance wmuld 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 of 1891, ch. 306, secs. 3 and 4. So that the officers might, while the building was in the course of erection, havе 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 eye-sore.
*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 accommоdation 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 bеen 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 Am. and Eng. Corp. Cases, 586. After the license to build was refused, the work of building was commenced and prosecuted for sometime under a contract previously made by the defendant with the Mission Hospital. Subsequently (August 28th, 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 August 28th, 1891, was issued on October 5th, 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 to others equally as fatal to its enforcement against the defendant.
There was error in the ruling of the Court that the defendant was guilty', and a new trial must be granted.
Error