Gasque v. Town Of Conway

Decision Date06 May 1940
Docket NumberNo. 15076.,15076.
CourtSouth Carolina Supreme Court
PartiesGASQUE. v. TOWN OF CONWAY et al.

8 S.E.2d 871

GASQUE.
v.
TOWN OF CONWAY et al.

No. 15076.

Supreme Court of South Carolina.

May 6, 1940.


[8 S.E.2d 872]

Appeal from Common Picas Circuit Court of Horry County; J. Strom Thurmond, Judge.

Action by S. F. Gasque against the Town of Conway and others to recover damages for the refusal to grant plaintiff a permit to build and operate a gasoline filling station within the Town of Conway. From a judgment sustaining demurrers to the complaint, plaintiff appeals.

Affirmed.

E. S. C. Baker and Lonnie D. Causey, both of Conway, for appellant.

Wright & Burroughs, of Conway, for respondents.

FISHBURNE, Justice.

In this action the appellant seeks to recover damages against the respondents because of the refusal of the municipal authorities to grant him a permit to build and operate a gasoline filling station within the town of Conway.

The plaintiff alleges that prior to his application for a permit he entered into a contract with The Gulf Refining Company, under the terms of which he was to build a filling station upon his lot and lease the property, with the building, to the Gulf Company for a monthly rental of $50 per month. That he applied to the town council for a permit to erect the filling station, and permission was refused. Plaintiff then brought a mandamus proceeding against the town and obtained a writ of mandamus compelling the issuance of the permit. By reason of the refusal to grant the permit in the first instance, plaintiff alleges that he lost the sum of $768.27, as rental; that he was required to pay the sum of $535, as attorneys' fees in connection with the mandamus proceeding, and incurred costs in that proceeding in the sum of $57.60. He prays judgment against the Town of Conway in the aggregate amount of $1,360.87.

The present action is against the Town of Conway, a municipal corporation, and against its mayor and council, in their official capacity. The mayor and council demurred to the complaint upon the ground that as to them no cause of action was stated, in that the acts complained of were done by the named defendants in their official capacity as the town council of the Town of Conway, and that such judgment as might be recovered must be against the town and not against them; and further, upon the ground that the complaint contains no allegation that the mayor and members of council in refusing the permit acted corruptly or fraudulently, and under such circumstances they cannot be required to respond in damages, either personally or officially. It is clear that if the plaintiff

[8 S.E.2d 873]

obtained a judgment it would necessarily be against the municipal corporation as such, and not against the members of council. This demurrer was sustained by the Circuit Court. The plaintiff has appealed, but we think the decision of the lower court on this issue is obviously correct, and requires no discussion.

The Town of Conway demurred, on the ground that as to it no cause of action is stated, in that an action of the nature of the one here under consideration sounds in tort, and that a tort action cannot be maintained in the absence of a statute authorizing such action, and that there is no such statute in South Carolina.

It is firmly settled in this state by a long line of decisions that neither the commonwealth nor any of its political subdivisions is liable in an action ex delicto, unless made liable by express enactments of the General Assembly, except where the acts complained of, in effect, constitute a taking of private property for public use without just compensation. Brooks v. One Motor Bus, 190 S.C. 379, 3 S.E.2d 42; Sher-bert v. School District No. 85, Spartanburg County, 169 S.C. 191, 168 S.E. 391; Chick Springs Water Co. v. State Highway Department, 159 S.C....

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