Asheville daily citizen. [volume] (Asheville, N.C.) 1890-1900, 1892-03-10


ceived by Clerk OF the Criminal Court
Patterson. Many parts of it will be
found to he of general interest. After
reciting the conceded facts in the case
the court, Justice Avery delivering the
opinion, says:
ut is clear that If an ordinance is
passed bv municipal corporation which
upon its face restricts the right OF do
minion which the individual might other
wise exercise without question, not ac-
curding to any general or uniform rule.
but so as to make the absolute enjoy
ment OF his own depend upon the gov
erning arbitrary will of the authorities
OF the town orcity, 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.
1.-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 Ashcville any building OF any
kind or character, or otherwise add to,
build upon orgenerally change any build
ing, without first having applied to the
aldermen and obtained a permission for
that purpose Whether the land owner
proposes to erect on his premises store
house, opera house, dwelling, stable,
kitchen, or hen house, and whether he
proposes to use fre-proof or combusti-
BILE material in the structure, he is re-
quired 10 apply to the aldermen of Ashe-
vile 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, tower, or improve by digging a
ellar in the dwelling house occupied by
him, he would subject himself to like
danger, though he should use no ma
terial in making the improvement not
generally considered freproof. But while
the right to prohibit the erection of a
building without regard to the material
to be used in structuring it, has been held
unreasonable, the most Objectionable
feature of the ordinance is the reserva.
tion by the aldermen of the right to re.
fuse the application of one land owner
and grant that of another, arbitrarily
and despotically, when for all materia
purposes the two apply tor precisely the
same privilege. .
What is there in the ordi
nance under consideration to prevent
the aldermen, if they were so inclined
from prohibiting the construction Of an,
houses in definite boundary except
costly dwellings, and thereby enhancing
the value of the property in which they
have personal interest? We have NJ
idea that any such purpose exists, bu
we cannot sanction the enforcement o
an ordinance by means of which thu
aldermen may at any time not only en-
: tertain, but act upon such a corrupt mo
tive"
The learned justice then quotes the fol
lowing opinion from the Indiana court
mo discretionary powers should b
vested in officers whose duty it is to exc
cute the provisions OF ordinances.
The ordinance itself should specify ever,
condition of the license, and the office
should be merely intrusted with the dut
of issuing licenses to all who compl
with the prescribed conditions"
The opinion of Justice Avery then cor
\ tinues: "If the ordinance, in
\ stead of being void for want of rul
governing the exercise of discretion b
aldermen, had provided in plain term
that no person or corporation should b
allowed to erect building without
e cense at any point within the city, if
were understood that the person or CO..
poration had admitted patient suffe
y ing from typhoid fever into a hospits
under their management in another par
n of the same lot, the ordinance woul
have allowed an unreasonable interfe
ence with the rights of land owners b
cause it is not necessary, to prote'
health, to prohibit person from buil'
ing a house according to any plan on h
own land, but the end may be reache
by prohibiting the reception Of patien
who are suffering from infectious or co
tagious diseases.
"The act incorporating the Ashevil
Mission hospital, with which the deien
ant contracted to build, empowered Il
corporation to erect one or more he
pitals for unfortunate and destitute pc
r sons, and invested it with authority
make bylaws, etc., so that the office
might, while the building was in cour
of erection, have enacted a bylaw pr
viding that only aged and inhrm person
who were destitute, should be admitte
- Instead of using their authority to pl
, vent the spread of disease, the ordinan
y, leaves it in the power of unprincipl
officers to locate hospitals entirely wi
view to enhancing the value OF certa
. property. The erection of the hospi'
in section where there were only tel
ment houses might enhance values
property in the vicinity; while il lecat
of in more fashionable quarter it might
considered an eye-sore. 1t seems, no
ne ever, that the corporation, in the case
to lar, have already building on the sa
lot, which had been used as a hospit
an and had asked permit to add anotl
ca and thereby furnish additional acco
mediation for the sick, and had passe'
bylaw forbidding the reception OF
tients suffering from contagious or
C. fectious diseases, except by special
rangement with the managers UNI
- the advice of the physician. But ca
4 of typhoid fever had been admitted
that hospital. We do not know il
ID cially whether the disease is infectious
not; hut if the city, instead of the n
sion hospital, will enact just such a
hibitory bylaw applicable to all b
pitals within the corporate limits, t
question can be determined in the
pointed way.
"If it be conceded that the first o
- nance was void because it prescribed
general rule for the exercise of discreet
granting permits, the ordinance pas
after the contractor had expended mo
in disregard OF the void law, and pro
ing simply that all persons engaged
are erecting such buildings should be sub
ked to penalty Tor failure OF the owne
und the property to get permit under
out old arbitrary law, would be subjec
lay. the same objection, if not to OF
re. equally as fatal to its cnforcen