#### STATE OF NORTH CAROLINA Ex Rel. W. K. McLEAN, Solicitor for the Nineteenth Judicial District, v. MRS. ANNIE TOWNSEND.

(Filed 17 September, 1947.)

1. Nuisance § 7—

In the absence of statutory provision, a suit to abate a public nuisance, except at the instance of an individual who suffers special damage, may be maintained only by the State on relation of its Attorney-General and not on the relation of the Solicitor of the District.

2. Same—

A suit to abate a public nuisance as defined by G. S., 90-103, cannot be maintained under G. S., 19-2 to 19-S.

PlaiNtief’s appeal from *Gwyn, J.,*at May Term, 1947, of BuNCOmbe.

*Cecil C. Jachson for plaintiff, appellant.*

*No counsel contra.*

Seawell, J.

This suit was brought to abate what is charged to be a public nuisance in the City of Asheville, being maintained by defendant in the unlawful keeping and sale of narcotics, and vending the same to addicts, and to others for redistribution, and administering narcotic drugs to them by hypodermic subcutaneous injection on the premises. The place was frequented by a large number of persons, all during the day and until 12 o’clock or afterward at night, many of them narcotic drug addicts, and at times the habitues and proprietress were boisterous and profane.

Instruments and equipment for drug injections were found when the premises were raided by the officers and many evidences of their exten*643sive use were found. Tbe evidence was clearly sufficient to classify tbe place as a nuisance under G. S., 90-103 (see Narcotic Drug Act) and to convict tbe defendant for its maintenance and tbe unlawful beeping and dealing in narcotics and tbe syringes *et cetera*used in their injection.

Tbe action is brought, however, as a civil suit for tbe abatement of a public nuisance, by tbe State on relation of tbe Solicitor of tbe 19th Judicial District, and appears to have been based on G. S., 19-2 to 19-8, a statute confined to abating nuisance created by prostitution, gambling or illegal sale of whiskey, and tbe method of abatement sought follows that pattern.

It is to be noted that tbe Narcotic Drug Act, G. S., Article 5, 90-86 to 90-113, while it declares and defines a public nuisance. — Sec. 90-103— does not provide specifically for its abatement; and by declaring tbe building, boat, aircraft, or whatnot to be tbe nuisance, and not providing for its confiscation or effectual means to secure discontinuance of its nefarious use, rather embarrasses tbe common law, which modern conceptions of nuisance have somewhat outrun, with respect to tbe remedy.

Be that as it may, in tbe absence of statutory authority we are of the opinion that although tbe.nuisance complained of, and its abatement, is of special concern to tbe City of Asheville, tbe instant case is subject to two serious defects: First, it is a public nuisance. In tbe absence of statute and barring those instances where an individual may take action because of bis special damage over and above that suffered by other members of tbe general public, “Tbe State is tbe proper party to complain of wrongs done to its citizens by a public nuisance”; *Pedrick v. R. R.,*143 N. C., 485, 498, 55 S. E., 877. And we are of tbe opinion that this must be done, as heretofore, on tbe relation of its Attorney-General. 39 Am. Jur., p. 376, Sec. 123, n. 22. Second, we do not find G. S., 19-2 to 19-8, under which this proceeding appears to have been brought and prosecuted, applicable. *S. v. Alverson,*225 N. C., 29, 33 S. E. (2d), 135.

If there is any reason why those who are responsible for this heinous offense against society and open violation of tbe narcotic laws may not be adequately punished in a criminal case, we fail to perceive it. But as for tbe present proceedings, for tbe reasons stated, we are unable to sustain it.

Tbe judgment of nonsuit is

Affirmed.