Dare County v. Mater , 235 N.C. 179 ( 1952 )

69 S.E.2d 244 (1952) 235 N.C. 179

DARE COUNTY
v.
MATER.

No. 28.

Supreme Court of North Carolina.

February 27, 1952.

Martin Kellogg, Jr. and J. Henry LeRoy, Elizabeth City, for plaintiff appellee.

Worth & Horner and Forrest V. Dunstan, Elizabeth City, for defendant appellant.

BARNHILL, Justice.

We need not now consider plaintiff's motion to strike defendant's purported case on appeal for the reason a fatal defect appears on the face of the record. Lawrence v. Lawrence, 226 N.C. 221, 37 S. E.2d 496; Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66; State v. Parnell, 214 N.C. 467, 199 S.E. 601. In fact, it may be that the service of a case on appeal was not required. Privette v. Allen, 227 N.C. 164, 41 S.E.2d 364.

If the plaintiff is seeking to abate a public nuisance—and the complaint may be so construed—it is without authority to maintain this action.

An action to abate a public nuisance by injunction or otherwise must be maintained in the name of the State, and our statute designates with particularity those who may become relators and prosecute the cause in the name of the State. G.S. § 19-2. See also G.S. §§ 160-234, 130-25, and N.C.Const., Art. VII, sec. 2. While the members of the Board of Commissioners may, as individuals, become relators, G.S. § 19-2, they may not prosecute this action in the name of the County.

Ch. 940, Session Laws 1949, authorizes the playing of the game of Bingo in Dare County when the operator is duly licensed by the Board of Commissioners of Dare County. However, the statute does not specifically authorize the operator to offer prizes of any type to the winners. And any contention that the Act may be so construed as to constitute an amendment, by implication, of our general statute prohibiting gambling, G.S. ch. 14, Art. 37, would be of dubious merit. Be that as it may, the plaintiff alleges that defendant's license to conduct the game of Bingo in Dare County has been duly revoked and that he continues his said business in the County without license and is offering cash prizes to the winners. Therefore, if upon these allegations, this cause be construed as an action to enjoin the violation of the criminal laws, it may not be maintained for the reason the plaintiff has an adequate remedy at law by indictment.

With certain limited exceptions "there is no equitable jurisdiction to enjoin the commission of crime." Hargett v. Bell, 134 N.C. 394, 46 S.E. 749, 750. Ordinarily, injunctive relief is available only "where some private right is a subject of controversy." Patterson v. Hubbs, 65 N.C. 119; Carolina Motor Service v. Atlantic Coast Line R. Co., 210 N.C. 36, 185 S.E. 479, 104 A.L.R. 1165; City of Fayetteville v. Spur Distributing Co., 216 N.C. 596, 5 S.E.2d 838; Town of Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593; Seaboard Air Line Railway Co. v. City of Raleigh, D.C., 219 F. 573, affirmed 242 U.S. 15, 37 S.Ct. 8, 61 L.Ed. 121.

Upon the trial of defendant under an indictment, he may assert his affirmative defense, to wit: He was duly licensed to operate a place of business at which the game of Bingo was played and his license has not been lawfully revoked. Thus the main issues the parties seek to present in this cause may there be fully heard and determined.

Insofar as this is an action to abate a public nuisance by injunction, there is a fatal defect of party plaintiff, of which the Court must take notice ex mero motu. Considered as an action to restrain the violation of the criminal law, the complaint fails to state a cause of action. Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E.2d 644. In either event, it must be dismissed. The cause is remanded with instruction that the court below enter judgment dismissing the action.

Remanded.