Opinion
18713
October 11, 1967.
Messrs. Zeigler Townsend, of Florence, for Appellants, cite: As to the State of South Carolina being the real party in interest and this action should be brought in its name and the demurrer should be sustained: 198 S.C. 487, 18 S.E.2d 372; 193 S.C. 25, 7 S.E.2d 635; 124 C.J.S. 897, Nuisances, Sec. 124; 211 S.C. 395, 45 S.E.2d 603; 66 C.J.S. 965, Nuisances, Sec. 160; 192 S.C. 101, 5 S.E.2d 560; Annos. 50 A.L.R. 232, 83 A.L.R.2d 454, 134 A.L.R. 545; 134 A. 638, 50 A.L.R. 983; 227 N.C. 642, 44 S.E.2d 36; 66 C.J.S. 883, Nuisances, Sec. 114; 124 C.J.S. 899, Nuisances, Sec. 124.
Messrs. Daniel R. McLeod, Attorney General, C.T. Goolsby, Jr., Assistant Attorney General, of Columbia, and T. Kenneth Summerford, Solicitor of Florence, for Respondent, cite: As to a law enforcement officer being the proper party to maintain an action on behalf of the State to enjoin one from doing any of the acts which have been proscribed by Section 64-2 of the Code and which have been declared to constitute a public nuisance: 67 C.J.S. 917, Parties, Sec. 21 (a); 65 Iowa 488, 22 N.W. 641, 54 Am.Rep. 19, 24-25; 227 N.C. 642, 44 S.E.2d 36; 3 Sutherland Statutory Construction 322, Sec. 322.
October 11, 1967.
This is an action brought by Edward A. McLeod, in his official capacity as Sheriff of Florence County, to enjoin the defendants from violating Sections 64-2 to -2.2, Code of 1962, (Cum. Supp.), by carrying on their ordinary business of selling goods, wares and merchandise on Sunday. Section 64-2.4, id., which is invoked by the complaint, authorizes any State, county or municipal law enforcement officer to apply for such an injunction. The defendants demurred to the complaint on the ground of defect of parties "in that Section 10-1802, S.C. Code of Laws, 1962, does not permit a Sheriff to maintain an action in his own name or in his official capacity to abate a public nuisance." The circuit court overruled the demurrer, and the defendants have appealed.
Section 10-1802, Code of 1962, is part of an act of 1918, 30 Stat. 814, relating to houses of assignation and prostitution. It is wholly inapplicable to the conduct against which the Sheriff seeks an injunction under Section 64-2.4, supra. It is, therefore, without legal significance that Section 10-1802 does not permit the Sheriff to maintain this action. The demurrer on this ground is without merit and was properly overruled.
Affirmed.