The opinion
On petition eor a rehearing.
’Worden, J.
In this case a petition for a rehearing has been filed, in which the question involved has been elaborately and exhaustively argued. On the argument, and on further consideration of the question, we are clearly satisfied that the decision heretofore pronounced is correct. The ordinance in question can not be upheld.
A hospital is not prima facie or per se a nuisance, though it might under some circumstances become such.
The ordinance is not based upon the theory that a hospital is necessarily a nuisance, for it is hardly to be supposed that the common council and board of aldermen contemplated the licensing of a nuisance. Nor *197 does the ordinance contemplate the entire prohibition of hospitals within the city, inasmuch as it provides for licensing them. And this is the view of counsel for the appellee ; for they say in their written “ suggestions,” filed on the argument of the petition, “ there is no prohibition contained within the ordinance in question. It simply regulates the establishment, and does not in any sense prohibit.”
But does the ordinance regulate such establishments ? Clearly not. Erom the beginning to the end of it there is no such regulation provided for.
The first section makes it unlawful for any one to establish, maintain, operate or conduct any hospital within the city, without a license or permit from the common council and board of aldermen. The second provides for the manner of obtaining the license, viz., by filing a written application therefor, stating the character and location of the proposed hospital, and giving the notice provided for. No license fee is required, and the ordinance was not intended as a revenue measure. The third makes the ordinance applicable alike to hospitals then established and those that might be thereafter established. The fourth provides a penalty for a violation of the ordinance ; and the fifth and last section provides for the taking effect of the ordinance from and after its publication.
An analysis of the ordinance shows that no attempt was made therein to regulate hospitals, either as to their location or manner of being conducted.
Without any provision as to the location or management of hospitals, the ordinance attempts to make it unlawful for any one to establish or conduct one without a license or permit from the common council and board of aldermen; and the granting or refusal of the license or permit is not governed by any prescribed rules, but rests, in such case, *198 in the uncontrolled discretion of the common council and board of aldermen.
It is apparent, that, under the ordinance, if valid, the common council and board of aldermen have the power, to grant or refuse the license in any given case, at their mere pleasure; and that no one can conduct or maintain a hospital within the city, however harmless or beneficial it might be, except by the consent of the common council and board of aldermen. '
It is not necessary to suppose that the common council and board of aldermen would abuse the power thus assumed by them, to grant or refuse the license, as they might think proper, or that they would exercise it otherwise than as they might think for the public good. It is sufficient to say, that, if the ordinance is valid, the common council and board of aldérmen have it in their power to grant one person a license, and refuse another, under the same circumstances. No law could be valid, which, by its terms, would authorize the passage of such an ordinance. The 23d section of the Bill of Rights provides, that “ The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” What the Legislature can not do directly in this respect, it can not authorize a municipal corporation to do.
The petition for a rehearing is overruled.
Note. — Elliott, J., did not participate in the decision of this cause.