Gasque v. Town of Conway

• Decision Date: 06 May 1940
• Docket Number: 15076.
• Parties: GASQUE v. TOWN OF CONWAY et al.
• Court: South Carolina Supreme Court

8 S.E.2d 871

194 S.C. 15

GASQUE v. TOWN OF CONWAY et al.

No. 15076.

Supreme Court of South Carolina

May 6, 1940

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 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; Sherbert 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. 481, 157 S.E. 842; Randal v. State Highway Department, 150 S.C. 302, 148 S.E. 57; Faust v. Richland County, 117 S.C. 251, 109 S.E. 151; Lowry v. Thompson, 25 S.C. 416, 1 S.E. 141.

A municipal corporation, instituted for the purpose of assisting the state in the conduct of local civil government, is not liable to be sued in an action for nonfeasance or misfeasance of its officers in regard to their public duties without express statutory authority therefor. Gibbes v. Beaufort, 20 S.C. 213; Parks v. City Council of Greenville, 44 S.C. 168, 21 S.E. 540; Bryant v. City Council of Orangeburg, 70 S.C. 137, 49 S.E. 229; Irvine v. Town of Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L.R.A.,N.S., 363.

Undoubtedly the cause of action stated in the complaint sounds in tort, and if considered solely in this aspect it cannot be maintained, because no statute in this state authorizes the maintenance of an action of this kind against a municipal corporation. But the plaintiff earnestly presses the view that the act of the town in refusing to grant the building permit was, in effect, a taking of private property for public use without just compensation, and that the action may be maintained without legislative enactment, under the self-executing provision of the Constitution. We will, therefore, consider the case from the standpoint of whether the refusal of the permit amounted to a taking of plaintiff's property within the purview of the Constitution. The Circuit Court gave full recognition to the doctrine that a municipal corporation may be made to respond in damages, in the absence of statute, when it has taken private property for a public use without paying just compensation therefor. That court, however, denied that the mere refusal to grant a building permit constitutes a taking of property in the constitutional sense, and sustained the demurrer interposed by the town.

The Constitution of this State (Art. 1, Sec. 17) provides that "private property shall not be taken *** for public use without just compensation being first made therefor".

In construing this provision of the Constitution, we have held, along with many other courts, that an actual physical taking of property is not necessary to entitle its owner to compensation. A man's property may be taken, within the meaning of this provision, although his title and possession remain undisturbed. To deprive him of the ordinary beneficial use and enjoyment of his property is, in law, equivalent to the taking of it, and is as much a "taking" as though the property itself were actually appropriated.

Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys one or more of these elements of property to that extent destroys the property itself. It must be conceded that the substantial value of property lies in its use. Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689. If the right of use be denied, the value of the property is annihilated, and ownership is rendered a barren right.

The constitutional prohibition against taking private property for public use without just compensation must have been intended to protect all the essential elements of ownership which make property valuable, including, of course, the right of user, and the right of enjoyment. Accordingly, it has been held that the erection and maintenance of a public work or enterprise under lawful authority in such a way as to destroy the beneficial use of adjacent land or property may constitute a taking, although there is no physical invasion of the property itself. This principle is illustrated by such cases as Kneece v. City of Columbia, 128 S.C. 375, 123 S.E. 100, which was an action for damages to property, caused by disagreeable odors resulting from the installation of a...