Ex Parte Evans.

• Decision Date: 31 October 1905
• Parties: Ex parte EVANS.
• Court: South Carolina Supreme Court

52 S.E. 419

72 S.C. 547

Ex parte EVANS.

Supreme Court of South Carolina.

Oct. 31, 1905.

Appeal— From City Council—When Lies.

No appeal lies to the circuit court from the refusal of a city council to issue a permit to build a house; the council acting in an administrative capacity.

Appeal from Common Pleas Circuit Court of Greenville County; Gage, Judge.

Petition to city council of Greenville by Mrs. Mary Evans for permit to build a house. Upon objection by Mrs. Maude Simmons, the permit was refused. Mrs. Evans appealed to circuit court, which reversed the action of the city council. From this order, Mrs. Simmons and the city council appealed. Reversed.

Mauldin & Townes, for appellant Simmons.

M. F. Ansel and Cothran, Dean & Cothran, for respondent

JONES, J. On June 14, 1904, petitioner applied to the board of fire commissioners of the city of Greenville, under the provisions of the ordinances of said city, for permission to erect a two-room frame dwelling on Academy street, in said city, and on same day a permit was granted, signed by the chairman of the board of fire commissioners and chief of the fire department; but on the 16th day of June, 1904, the chief of the fire department revoked said permit and forbade work on said build-ing. On July 5, 1904, the petitioner applied to the city council of Greenville for the building permit. The appellant, Mrs. Maude Simmons, one of petitioner's neighbors, presented a petition opposing the permit on two grounds: (1) That the erection of the proposed building in such close proximity to her house and that of E. B. Owens will constitute a danger to their property in case of fire; (2) that the proposed cottage is to be occupied by negroes, and will operate as a nuisance. The matter was referred by the city council to the board of fire masters. This board referred the matter back to the city council, reporting that they did not feel justified in refusing the permit on the first ground, and had accordingly issued it. With reference to the second ground, this board reported that it was out of their jurisdiction to consider. The city council claiming to act under the ordinance approved April 20, 1887, after considering the petition and affidavits submitted, and hearing argument for and against the same, refused to approve the permit granted by the board of fire masters and refused permission for the building of the house. From this action of the city council, the petitioner appealed to the circuit court. A motion was made in the circuit court to dismiss the appeal on the ground that the circuit court had no jurisdiction to entertain the appeal, which was overruled. The circuit court then proceeded to hear the appeal, and made an order reversing the action of the city council, and allowing petitioner to proceed with the erection of the proposed building.

Mrs. Maude Simmons and the city council of Greenville served notice of intention to appeal. On the call of the case, the city council of Greenville, having announced that they abandoned the appeal, the appeal was by order of the court, dismissed so far as the city council of Greenville is concerned. Mrs. Maude Simmons presents a number of exceptions to the judgment of the circuit court, the first of which is that the circuit court had no jurisdiction to entertain the appeal of Mrs. Mary Evans, for the reason that the city council, in this particular matter, was not acting as a court of inferior jurisdiction, from which an appeal could be taken. If this view be correct, then no other question sought to be raised by the exceptions is properly before the court.

We are of the opinion that the circuit court was without jurisdiction to entertain the appeal sought to be taken from the action of the city council. Section 15, art. 5, of the Constitution, gives to the court of common pleas appellate jurisdiction "in all cases within the jurisdiction of inferior courts, except from such inferior courts from which the General Assembly shall provide an appeal • directly to the Supreme Court." Is this a case within the jurisdiction of the city council as an inferior court? Judge Story, in his Commentaries on the Constitution (vol. 3, p. 626) says: "The essential of appellate jurisdiction is that it reviews and corrects the proceedings in a case already instituted, and does not create that cause in reference to judicial tribunals; an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been instituted in and acted upon by some other court whose judgment or proceedings are to be reviewed. ...