concurring specially.
I agree with Judge Carley that the mayor and members of the city council were sued solely as the governing authority of the city and not as individuals. None of them are identified by name in the complaint; and although the mayor was served, it is clear under the circumstances that he was served only as agent for service of the governing authority. Both the complaint and the pre-trial order entered in the case consistently refer to the defendant as either “the city” or “the governing authority of the city,” and the pre-trial order further specifies that “the names of the parties as shown in the caption . . . are correct and complete and there is no question by any party as to the misjoinder or nonjoinder of any parties.”
Nevertheless, I agree with the majority that the complaint should not have been dismissed. The gist of the appellant’s claim, as summarized in the pre-trial order, is that the city acted arbitrarily and capriciously in refusing to issue him a business license. I believe such an allegation is sufficient to state a claim for relief under 42 USC § 1983. Although a municipality cannot be held liable for damages under § *6791983 on a respondeat superior theory, it may be sued under § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflict the injury” for which relief is sought. Monell v. New York City Dept. of Social Svcs., 436 U. S. 658, 694 (98 SC 2018, 56 LE2d 611) (1978). See also Martinez v. California, 444 U. S. 277, 284 (100 SC 553, 62 LE2d 481) (1980) (holding that state immunity law affords no defense in a § 1983 action); Owen v. City of Independence, 445 U. S. 622, 650 (100 SC 1398, 63 LE2d 673) (1980) (holding that a municipality sued under § 1983 cannot acquire qualified immunity from liability by asserting the good faith of its officials as a defense); Patsy v. Bd. of Regents of Fla., 457 U. S. 496 (102 SC 2557, 73 LE2d 172) (1982) (holding that exhaustion of state administrative remedies is not an absolute prerequisite to bringing a § 1983 action). Thus, although the city may easily be able to establish in the present case that it did not act arbitrarily or capriciously in failing to issue the appellant a business license, I would hold that complaint is not subject to dismissal at this juncture for failure to state a claim.
I am authorized to state that Judge Benham joins in this special concurrence.