State v. . Alverson

Devin, J. The statutes, G. S., 19-1, and G. S., 19-2, under which this action was brought, authorize a civil action in the name of the State upon the relation of a citizen, and permit the issuance of an injunction without bond, the closing of a place of business, and the seizure of the personal property used in connection therewith, upon verified complaint of a nuisance which is therein defined as follows: “Whoever shall erect, establish, continue, maintain, use, own or lease any building, erection or place used for the purpose of lewdness, assignation, prostitution, gambling or the illegal sale of whiskey, is guilty of a nuisance.” ' It is apparent that the allegations and proof of acts and conduct which would justify the proceeding here undertaken must point to one of three things, viz.: prostitution, gambling or the illegal sale of whiskey. Neither of these is alleged in the complaint or shown by the evidence. Hence, defendant was entitled to have the restraining order dissolved and the personal property released from custody. There is no allegation of peculiar injury to person or property of plaintiffs resulting from the public nuisance alleged which would entitle the plaintiffs to maintain a civil action therefor. Reyburn v. Sawyer, 135 N. C., 328, 47 S. E., 761; Hall v. Coach Co., 224 N. C., 781. The maintenance of a public nuisance is an offense against the State, and upon proper allegation and proof would subject the person who maintained it to indictment. S. v. Everhardt, 203 N. C., 610, 166 S. E., 738; S. v. Brown, 221 N. C., 301, 20 S. E. (2d), 286; 39 Am. Jur., 378. But the proceeding prescribed by G. S., 19-2, for a civil action by a citizen in the name of the State for injunction, the closing of a place of business. and the seizure and sale of the .personal property used therewith must be based upon allegation and proof of one or more of the specific acts *31 •denounced, by G. S., 19-1. Barker v. Palmer, 217 N. C., 519, 8 S. E. (2d), 610; Carpenter v. Boyles, 213 N. C., 432, 196 S. E., 850. While the plaintiffs’ allegations and the affidavits offered disclose undesirable conditions about defendant’s place of business, they are not in law sufficient to invoke the statutory procedure here undertaken. Whether the evidence warrants criminal prosecution is a matter for the local authorities. It may be noted that the sale of beer and wine is permitted under the State law, and license therefor was granted to this defendant by the ■county and municipality under the provisions of G. S., 18-72, et seq. The rights of the parties and of the public thereunder are pointed out in McCotter v. Reel, 223 N. C., 486. The order continuing the restraining order and directing retention of ■custody of defendant’s personal property must be Reversed.