The opinion
On Motion for Rehearing.
Were it not for the fact that the motion for rehearing discloses that appellants have apparently misunderstood our original opinion, we would have deemed it unnecessary to write further on this subject, ás we had felt that the issue determined disposed of the entire case.
Our theory of government and governmental. powers is wholly at variance with that urged by appellant herein. The rights of the individual are not derived from governmental agencies, either municipal, state or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creatór, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the peo- *946 pie. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade,these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. The fewer restrictions that surround the individual liberties of the citizen, except those for the preservation of the public health, safety, ánd morals, the more contented the people and the more successful the democracy.
The only portion of Ordinance 742 of the city of Dallas which we declare unconstitutional is that part relative to the securing of permits for the erection of business buildings in the residence sections of the city. Those sections of the ordinance dealing with securing of permits for the erection of billboards in residence sections; the securing of permits for the establishment of certain named businesses in residence sections as set out in section 5, such as livery stables, tanneries, glue factories, etc.; .the fixing of building lines; the segregation of the white and black.. races; and the securing and recording of agreements regarding the use of property—are not in any way presented or involved in this suit, and consequently we have made no holding whatever as to the validity or invalidity of such portions of the ordinance.
The trial court directed the issuance of the permit by appellant to appellee upon the latter’s filing plans and specifications with the building inspector of the city of Dallas; and the affirmance of the judgment of the trial court necessarily involves the sustaining of such court’s position, and necessarily constitutes a finding that the specifications have not been filed, but that they should be, as a condition precedent to the issuance of the permit. But the building inspector cannot arbitrarily refuse the permit if the specifications do not please him, but only in the event they distinctly and positively violate the valid provisions of the Building Code. It is only necessary that they comply with the definite, certain, and established terms of the ordinance. They are not subject to rejection at the discretion or pleasure of the building inspector.
The validity of the ordinance creating a board of appeals for review of the decisions of the board of commissioners granting or denying building permits we do not pass upon, as this question was not presented in the original appeal. And necessarily the authority of that body and the validity of its acts are not property under consideration here. The bo.ard of appeals was not a necessary party to this suit; the city of Dallas alone, without the joinder of any of the other defendants, 'being sufficient. The facing of the building on Edgefield street as required by the city ordinance is a sufficient compliance therewith, regardless of the number of openings or entrances from Davis street into the various sections of the building.
Appellee was not estopped to question the validity of the ordinances merely because he endeavored to comply with its provisions in attempting to procure a building permit.
Property may be restricted to a certain kind and character of improvements by conditions in a deed of conveyance, by dedication, or by mutual agreement of all owners in -which all parties affected have notice. But where no such conditions exist and the public health, safety, and morals are not endangered, an owner may deal with his property in accordance with his own free will. The rights of the individual man are not subject to impairment in the manner provided by that portion of the ordinance involved herein.