dissenting.
I fully concur in Divisions 1 and 2 of the majority opinion. However, I cannot agree with Division 3 of the majority opinion, nor with the reversal of the order dismissing the complaint for failure to state a claim. In order to place this case in its proper perspective with respect to the doctrine of sovereign immunity, it must be emphasized that the underlying action was against the City of Flemington. Although the defendant was styled as “Mayor and Council of the City of Flemington,” the only defendant is the city, and neither the mayor nor members of the council were joined as defendants. Thus, I respectfully submit that the majority has misplaced its reliance upon Hodges v. Youmans, 122 Ga. App. 487 (177 SE2d 577) (1970). In Hodges, the plaintiff “filed suit. . . against Fred Wessels, Jr., Elinor Jackson, and 21 other defendants, alleging a conspiracy on their part to injure and damage him respecting his construction of a trailer court.” Likewise, in Vickers v. Motte, 109 Ga. App. 615 (137 SE2d 77) (1964) upon which Hodges relied, Mr. Vickers was joined as a party defendant on the basis of allegations that he had improperly acted “under the color of his office.” Vickers v. Motte, supra. The only averments of the complaint in this case are that the city has acted improperly vis-a-vis the plaintiff. “Accordingly, from the allegations of the [complaint] it appears that the [city] in doing the acts complained of here was engaged in the exercise of its police power, although in an improper manner, which power is one of its governmen*680tal functions. [Cits.]” (Emphasis supplied.) City of Thomson v. Davis, 92 Ga. App. 216, 218-219 (88 SE2d 300) (1955).
Notwithstanding the only operative averments of the complaint as above pointed out, the majority concludes that “we cannot now say whether appellant can show facts which support his claim against these parties.” (Emphasis supplied.) (Majority opinion, page 678) The record unequivocally shows that there are no other “parties.” The city was collectively sued as “Mayor and Council of the City of Flemington.” The only party designated to be served and the only party served was O. C. Martin, Jr., the Mayor of the City of Flemington. However, even Mayor Martin was not named as a defendant to the civil action. Accordingly, contrary to the majority’s conclusion, I believe that it is “outside the realm of possibility that appellant could prove a set of facts supporting his allegation that [any individual defendant] acted in bad faith.” (Majority opinion, page 678) This is so simply because there are no individual defendants.
I also cannot agree with the portion of the special concurrence which would find that a claim has been stated on the basis of 42 USC § 1983. The special concurrence states: “The gist of 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.” (Emphasis supplied.) (Special concurrence, p. 678) There was no pre-trial order entered in this case. A proposed pre-trial order was filed the day before the court granted the motion to dismiss, but that “proposed” order was not signed by the court.
However, even if the language in the “proposed” order were to be considered, there still would be absolutely no hint of a § 1983 claim in this case. “In order to state a claim under 42 USC § 1983 the plaintiff must allege that the defendant is a person who deprived him of a constitutional right while acting under color of state law or custom.” Davis v. City of Roswell, 250 Ga. 8, 9 (295 SE2d 317) (1982). “We interpret 42 USC § 1983 to create a cause of action, cognizable by the courts of this state, based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right.” (Emphasis in original.) City of Cave Spring v. Mason, 252 Ga. 3, 4 (310 SE2d 892) (1984). The complaint does not even attempt to state a claim upon which relief can be granted on the basis of 42 USC § 1983.
Therefore, the trial court correctly determined that the complaint failed to state a claim upon which relief could be granted. Murphy v. ACLU of Ga., 258 Ga., 637, 638 (4) (373 SE2d 364) (1988). The judgment of the triál court should be affirmed, and I respectfully dissent.
I am authorized to state that Presiding Judge Been and Judge *681Pope join in this dissent.
Decided September 6, 1988 — Rehearing denied December 20, 1988 John E. Pirkle, for appellant. James W. Smith, for appellees.