Boyce v. Lancaster County Natural Gas Authority

Per Curiam:

This action for personal injury and property damage was commenced against Lancaster County Natural Gas Authority in January, 1975. The complaint alleges that an explosion occurred at plaintiff’s home in Lancaster, S. C. on October 16, 1973 destroying the house and causing serious bodily injury to. plaintiff. This explosion was allegedly caused by the negligence of the agents, servants and employees of the defendant.

The defendant demurred on the ground that it is an agency of the State of South Carolina and is thus immune to an action in tort because of the sovereign immunity of the State. The circuit court sustained' the demurrer after finding, that the' defendant is a public corporation and an *401integral part of the State. Plaintiff has appealed from that decision.

The Lancaster County Natural Gas Authority (hereafter The Authority) was created by Act No. 879 of the 1954 Acts of the General Assembly as a “body corporate and politic of perpetual succession.” The Authority was created for the purpose of securing a supply of natural gas for the benefit of the incorporated and unincorporated municipalities, and other populated areas within its service area, with authority to construct transmission lines and distribution systems in order to furnish natural gas service.

The manufacture and sale of power is a public and governmental function. Welling v. Clinton Newberry Natural Gas Authority, 221 S. C. 417, 71 S. E. (2d) 7. The South Carolina Public Service Authority was created by the General Assembly for the purpose, among others, of producing and selling electrical power. S. C. Code of Laws, § 59-1 et seq. This Court has held that the Public Service Authority is a quasi municipal corporation and is thus immune to an action ex delicto the same as the State itself. Rice Hope Plantation v. South Carolina Public Service Authority, 216 S. C. 500, 59 S. E. (2d) 132. There is no distinction between the power of a unit of government to manufacture and sell electricity and the power to buy and sell natural gas. Welling, supra. We see no substantial difference between the pertinent parts of Act No. 879 of 1954, creating the defendant, and Code Section 59-1 et seq. which established the Public Service Authority.

The defendant was created by the State, with its governing board appointed by State officials. It was created to perform a governmental function for the benefit of Lancaster County, a political subdivision of the State, and its net revenues are to be used by the municipalities which it serves. We agree that the defendant is a quasi municipal corporation and as such is immune to an action ex delicto because of the sovereign 'immunity of the State.

*402Section 4(a) of Act No. 879 of 1954 grants The Authority the power “to sue and be sued.” Appellant contends that such power amounts to a waiver of the immunity to an action ex delicto, which The Authority would otherwise enjoy. This contention was rejected in Rice Hope Plantation, supra. We adhere to the reasoning advanced in that case.

Plaintiff urges us, as a matter of public policy, to hold The Authority subject to an action ex delicto for any torts committed by its agents or servants while engaged in a commercial or proprietary enterprise.

This Court has consistently refused to recognize a distinction between governmental and proprietary functions of a municipal corporation. McKenzie v. City of Florence, 234 S. C. 428, 108 S. E. (2d) 825. We refuse to draw the distinction here.

In the recent case of Belton v. Richland Memorial Hospital, 263 S. C. 446, 211 S. E. (2d) 241 the Court refused to overrule or modify the doctrine of sovereign immunity based on the following rationale, which we adopt:

We recognize that the doctrine of sovereign immunity has been assailed on many fronts and has been abolished or modified in more than one-half of the states either by judicial decision or by statute. While we have serious reservations about the soundness and fairness of the doctrine and do not question the authority of the courts to abolish it, we adhere to the view that reform in this field should be left to the legislature. That body has not been unmindful of the problem and over the years has enacted a number of statutes waiving immunity in specified cases on stated terms and conditions.

Plaintiff has suggested that even if the court should refuse to abolish the doctrine, she should be afforded relief by its modification in certain respects. We are convinced, however, that our only rational alternatives on this record *403are to either abolish the doctrine or refuse to overturn our prior decisions. For the reasons already stated, we choose the latter course.

Affirmed.

Lewis, C. J., Littlejohn and Rhodes, JJ., and Moss, Acting Associate Justice, concur. Ness, J., dissents.