State ex rel. Hooks v. Flowers

Winborne, C. J.: Chapter 19 of the General Statutes of North Carolina provides a remedy for the abatement of certain types [561] of public nuisances. Pertinent sections of this chapter of the General Statutes are as follows: ■ (1) G.S. 19-1 declares that “whoever shall * * * maintain * * * any building * * * or place used for the purpose of * * * illegal sale of whiskey * * * is guilty of nuisance, and the building * * * or place upon which * * * illegal sale of liquor is conducted * * * and the furniture, fixtures, musical instruments and contents, are also declared a nuisance, and shall be enjoined and abated, as hereinafter provided.” (2) G.S. 19-2 prescribes the judicial machinery by which the abatement may be accomplished. This action was instituted pursuant to these provisions. And (3) it is noted that the only allegations contained in the complaint with respect to any alleged public nuisance are that unlawful sale of whiskey is transacted on and around the premises, and that materials for the unlawful manufacture of whiskey are kept, stored and secreted there. Therefore, when it appears that the iron safe found in the padlocked building has been opened by the sheriff, to whom the order to padlock was issued, and no whiskey or other intoxicating beverages are found therein, may the court thereafter require that the safe be re-opened for purpose of taking an inventory of the contents thereof to be furnished to others who are not parties to this action? Defendants contend, and we hold rightly so, that the effect of such inventory for such purpose is an invasion of the property rights of defendants without due process of law. Suggestion is made, however, that the examination of the contents of the safe by the sheriff and the agent of the State Bureau of Investigation may have been superficial and they may not have discovered everything that was in the safe. The officers do not say so. Indeed, the agent of the State Bureau of Investigation stated in this affidavit that he “searched the safe for intoxicating liquor, and found none.” And there is in the record no affidavit to the contrary. Moreover the record fails to show that defendants had notice that it was proposed to re-open the safe. Other than cash money there is no specification of what is in the safe, or as to the materiality of anything there may be in it. In this connection it is appropriate to compare the provisions of G.S. 8-89 and G.S. 8-90 relating to when and under what conditions a judge, upon due notice, may order the inspection and production of any books, paper, and documents containing evidence relating to the merits of the action or the defense therein. Decisions of this Court in respect thereto hold that the affidavit supporting an order for such inspection must suffi [562] ciently designate the writings, and show their materiality to the immediate issue in controversy. See Thomas v. Trustees of Catawba College, 242 N.C. 504, 87 S.E. 2d 913; Patterson v. Ry. Co., 219 N.C. 23, 12 S.E. 2d 652, and others to like effect. But the plaintiff contends that this appeal is premature and fragmentary. In this connection, G.S. 1-277, relating to right of appeal, provides that “an appeal may be taken from every judicial order or determination of a judge of a Superior Court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding * Defendants contend, and we think rightly so, that in instant case a substantial right of defendants is affected by the court order, in that it delves into their private property without legal process. See Eason v. Spence, 232 N.C. 579, 61 S.E. 2d 717, and cases cited. No sufficient reason being made to appear of record to support the order of 19 August, 1957, it is hereby set aside. Error.