It is my opinion that the city ordinance in question is unconstitutional and void, because it attempts to vest in the city council unrestrained and arbitrary authority to determine to whom a license shall be issued to conduct a generally recognized lawful business. All that is required to deny an applicant a license is that the city council shall determine that the applicants are (1) "not proper persons"; or (2) "that such rooming-house or hotel may be operated in such manner as to be a menace to the public health, peace, morals, or general welfare of the city." The first expression is wholly vague and indefinite, suggests no guide, and imposes no restraint. The second phase requires the city council to speculate as to what may happen, to leave the realm of present fact, and, by assuming to look into the future, make a present finding. It is impossible of execution.
It is manifest from the plain language employed that the intention is to confer power on the city council to deny a license to an applicant arbitrarily, no matter what report may *Page 42 be made on the application by the chief of police or the license and bond committee. Objection may be raised to the person for any reason, be it good or bad, resulting in a denial to him of the privilege of having an equal opportunity with others to make an honest livelihood. Under such authority, discrimination may be made because of nationality, religion, political adherence and the like; and, on mere suspicion or surmise as to the use for which the place may be operated," the council is vested with authority to refuse a license. Such a delegation of unbridled power is contrary to the basic principle upon which American liberties are grounded. The ordinance warrants arbitrary and discriminatory action by the city council, and that alone is sufficient to condemn it. My views appear to be supported by the great weight of authority. (See exhaustive note to the case ofState ex rel. Makris v. Superior Court in 12 A.L.R., pages 1435 to 1455. The same case is reported in 113 Wash. 296,193 P. 845.)
The majority opinion refers to many of the decisions supporting the rule for which I contend, and recognizes its merit, but does not apply it to the facts before us. It is my opinion, in accord with what I consider the weight of authority, and the correct rule applicable, that a city council cannot, by ordinance or otherwise, reserve to itself the power to grant or refuse licenses to conduct a legitimate business, according to whim or caprice or in an arbitrary manner. (State ex rel.Haddad v. City of Charleston, 92 W. Va. 57, 27 A.L.R. 323,114 S.W. 378.)
The very essence of American Constitutions is that the material rights of no man shall be subject to the mere will of another. (City of Tulsa v. Thomas, 89 Okla. 188,214 P. 1070; 17 R.C.L., p. 506; Butchers' Union Co. v. Crescent CityCo., 111 U.S. 746, 28 L. Ed. 585, 4 Sup. Ct. Rep. 652; Crossman v. City of Galveston, 112 Tex. 303, 26 A.L.R. 1210,247 S.W. 810; Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup. Ct. Rep. 1064,30 L. Ed. 220.) *Page 43
The validity of the ordinance is to be determined, not by what has been done under it, but by that which may be done under it by reason of its provisions. (City of Butte v. Police Court ofCity of Butte, 65 Mont. 94, 210 P. 1059.)
Yick Wo v. Hopkins, above cited, is a leading case supporting the rule which I contend to be applicable here. In that case two ordinances were involved, wherein it was provided that: "It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone." In speaking for the supreme court of the United States respecting the constitutionality of such ordinances, Mr. Justice Matthews said: "They [the ordinances] seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus, to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent, without reason and without responsibility. The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint. * * * When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean *Page 44 to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth `may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
In the case of Butchers' Union Co. v. Crescent City Co., supra. Mr. Justice Field made pertinent declarations of the rights of our people in language, to which I most heartily subscribe, applicable here to the ordinance under consideration. The learned jurist, in speaking of the language employed in the preamble of the Declaration of Independence, said: "Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, *Page 45 so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that: `The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property.'"
"Section 1 of the Fourteenth Amendment to the federal Constitution, and sections 3 and 27 of Article III of the Constitution of Montana, imply, if, indeed, they do not express, a prohibition against the power of the Legislature to enact a law whose effect would be the impairment of a vested right." (Hinds v. Wilcox, 22 Mont. 4, 55 P. 355.)
Rehearing denied April 26, 1927. *Page 46