State v. Tenant

• Decision Date: 16 February 1892
• Citation: 14 S.E. 387,110 N.C. 609
• Court: North Carolina Supreme Court
• Parties: State. v. Tenant.

14 S.E. 387

110 N.C. 609

State.

v.Tenant.

Supreme Court of North Carolina.

Feb. 16, 1892.

Municipal Corporations—Police Power—Building Ordinances.

1. An ordinance which provides that no person shall erect, add to, or generally change any building, without first obtaining the permission of the board of aldermen, is void in prohibiting the erection of buildings, irrespective of the materials to bo used, and also in reserving to the board the arbitrary power to refuse the application of one person and grant that of another.

2. Where an ordinance, prohibiting the erection of any building without a permit, is void for want of a rule governing the exercise of discretion in granting such permits, an ordinance passed after a contractor has expended money in the erection of a building, and providing simply that all persons so engaged shall be subject to a penalty for the failure of the owner to obtain a permit, is also void.

Appeal from criminal court, Buncombe county; M. E. Carter, Judge.

This was an indictment against J. A. Tenant, a contractor, for violation of a city ordinance forbidding any person to proceed with the erection of a building until the owner shall have obtained a permit. There was a judgment of conviction, and defendant appeals. Reversed. The other facts fully appear In the following statement by Avkry, J.:

Indictment for violation of a city ordinance, tried on appeal from the judgment of the mayor of the city of Asheville at October term, 1891, of the criminal court of Buncombe county, before Carter, J. The jury returned a special verdict, substantially as follows: (1) That the city of Asheville is a corporation, etc. (2) That the Asheville Mission Hospital is a corporation, etc., and has for several years been conducting a hospital for sick and destitute persons on a lot of land owned by it in the city of Asheville. (3) That the city duly passed the following ordinance: "That no person, firm, or corporation shall build or erect, within the limits of the city, any house or building, of any kind or character, or otherwise add to, build upon, or generally improve or change, any house or building, without having first applied to the aldermen, and obtained a permission for such purpose." (4) On the 15th of May, 1891, the architect and agent for said Mission Hospital applied to the aldermen for permission to erect a building on said lot, to be used as a hospital for sick and diseased persons, in connection with the building already on said lot, and which had been previously used by said Mission Hospital for said purpose. (5) That the following is a bylaw of said Mission Hospital: "No person afflicted with infectious or contagious disease shall be admitted to the hospital, except by special permission and arrangement of the board of managers, acting under the advice of the chief physician, or some other member of the medical 'board lawfully acting in his stead;" but cases of typhoid fever have been admitted into said hospital and cared for there. (6) That a petition was filed by a number of citizens of the city of Asheville asking the aldermen to refuse to permit said hospital to erect said building, and that the board of aldermen on the 12th of June, 1891, appointed a committee to investigate the matter; and on the 26th of June, 1891, the aldermen refused to grant the permission asked for, without assigning any reason for such refusal. (7) That after said refusal work was commenced on said building, and prosecuted for some time under a contract previously made by the defendant with the said Mission Hospital, and under the direction of its managers. (8) That on the 28th of August, 1891, the aldermen passed the following ordinance: "That no person or persons shall construct, or shall encourage or aid in the construction of, or shall work as a contractor, carpenter, laborer, brick or stone mason, or any other capacity, in the construction of any building within the corporate limits of the city, for the construction of which building no permit has been granted by the city: provided, however, that no act shall be deemed a violation of this ordinance, except such as are committed by the party or parties charged with such violation after he or they shall have been duly notified by the chief of police that no permit has been granted for the construction of said building. Any person violating said ordinanceshall, on conviction thereof, be fined $50." (9) That defendant had knowledge of the foregoing facts and ordinances, and was notified by the chief of police to stop work on said building, but he disregarded said notice, and continued to work on the same until his arrest. (10) That on the 5tb of October, 1891, the defendant was arrested by a warrant, tried and convicted before the mayor, and appealed to the criminal court of Buncombe county. If the court is of opinion that said ordinances are valid and constitutional, the jury rind the defendant guilty; but if the court be of opinion that they are invalid and unconstitutional, the jury find the defendant not guilty. The court, being of opinion that the ordinances are valid and constitutional, adjudged that the defendant was guilty, and that he pay a fine of $50, and costs. From this judgment the defendant appealed to the supreme court.

W. W. Janes and F. A. Sondley, for appellant.

The Attorney General and T. H. Cobb, for the State.

Avery, J., (after stating the facts.) The legislature is empowered, under the organic law, to restrict an individual, by direct enactment, in 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 face discriminate in favor of one person or class of persons over others; and, though the lawmaking power can unquestionably create a municipal corporation and delegate legislative authority to it cannot clothe the creature with power to do what the constitution prohibits the creator from doing. Cooley, Const. Lim.(4th Ed.) p. 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 enforceable by the same species of process against, all persons and classes. State v. Moore, 104 N. C. 721, 10 S. E. Rep. 143; State v. Chambers, 93 N. C.600; State v. Stovail, 103 N. C. 416, 8 S. E. Rep. 900; Dent v. State, 129 U. S. 114, 9 Sup. Ct. Rep. 231; Mugler v. State, 123 U. S. 623, 8 Sup. Ct. Rep. 273. "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." State v. Pender-grass, 106 N. C. 667, 10 S. E. Rep. 1002; State v. Summerfield, 107 N. C. 898, 12 S. E. Rep. 114; 1 Dill. Mun. Corp. § 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, 10 N. E. Rep. 464; City of Richmond v. Dudley, (Ind. Sup.) 28 N. E. Rep. 312; Yick Wo v.Hopkins, 118 D. S.356,, 6 Sup.Ct. Rep. 1064; May v. People, (Colo. App.) 27 Pac. Rep. 1010; Baltimore v. Radecke, 49 Md. 217; Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. Rep. 719; In re Frazee, 63 Mich. 396, 30 N. W. Rep. 72; Tugman v. Chicago, 78 111. 405; Village of Braceville v. Doherty, 30 111. App. 645; Barthet v. City of New Orleans, 24 Fed. Rep. 564; Bills v. City of Goshen, 117 Ind. 221, 20 N. E. Rep. 115; Lake View v. Letz, 44 111. 81; Hon-& B. Mun. Ord. § 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...