Spexcer v. Mahon

• Decision Date: 24 September 1906
• Citation: 75 S.C. 232,55 S.E. 321
• Parties: SPEXCER . v. MAHON et al.
• Court: South Carolina Supreme Court

55 S.E. 321

75 S.C. 232

SPEXCER .

v.MAHON et al.

Supreme Court of South Carolina.

Sept. 24, 1906.

1. Municipal Corporations — Control of Streets—Obstructions.

A city has no right to grant a license to conduct a business in the streets, in a small shoo on wheels, which has not been moved for months.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1461-

1460.1

2. Same—Revocation of License.

Where a person accepts from the mayor a license to conduct a business on the streets, revocable at the will of the city council, he takes subject to the continuation of the consent of the council to such use of the streets.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1482.]

3. Injunction—Revocation of License.

Where a license has already expired by its limitation, the court cannot enjoin the revocation thereof.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Injunction, § 20.]

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

Action by Charles E. Spencer against G. H. Mahon and T. L. Becknell. From an order refusing a temporary injunction, plaintiff appeals. Affirmed.

J. J. McSwain, for appellant.

Wm. G. Slrrine, for respondents.

WOODS, J. On March 9, 1905, the plaintiff obtained from the clerk of the city council of Greenville by direction of the mayor a license in the following words: "(Revocable at will of the council.) City of Greenville. Receipt for special taxes. Received of Chas. E. Spencer five dollars, being the special license tax for one year on—Business as Cold Lunches, ending March 1, 1906. Paid March 9, 1905. W. B. McDaniel, Clerk of Council." The plaintiff alleges under this license he was authorized to conduct a business in what he designates a "moving cafe, " which he describes as "being a small room resting on wheels, and which may be easily drawn from one place to another and used In some convenient station in or by the streets." The business was conducted mainly, if not entirely, at the intersection of Main and Washington streets, along which much city traffic passed. In October the mayor, through the chief of police, required the plaintiff to remove the "moving café" from the street, and subsequently, on November 7, 1905, the city council undertook to revoke the license. Thereupon, on November 8, 1905, this action was brought against the mayor and chief of police, asking that they be enjoined "from interfering with the plaintiff or his business under said license so long as plaintiff conducts same In an orderly and peaceable manner." The circuit judge, after hearing the return of the defendants, several affidavits as to the reasons which influenced the city council in revoking the license and an affidavit of the plaintiff in reply, denied the application for injunction, and the plaintiff appeals.

In their returns the defendants, among other things, aver that when the license was issued it was contemplated that the "moving caf6" would be a small affair to be frequently moved about so as to avoid complaint; whereas, the plaintiff has actually fitted up a small store with electric lights, and has conducted a large business for six months on Washington street at its intersection with Main street, where there is a great volume of traffic; and that the store and business constitute a serious obstruction to the use of the street. The defendant, in his reply, alleges that the mayor well knew the character of the business when the license was Issued, and he denies that it was an obstruction to the street; but he does not deny defendants' allegations that he had been doing a large business in what is practically a store or shop, though mounted on wheels,...