
115 S.E.2d 18 (1960)
252 N.C. 803
Arthur L. PHARR
v.
Linn D. GARIBALDI, Chairman, and Edgar Gurganus, James M. Parrott, Jr., Dr. Harley Shands, Dr. M. B. Davis, W. W. Shope, Mrs. J. Melville Broughton, Members of the North Carolina State Prison Commission, and William F. Bailey, Director of Prisons.
No. 449.
Supreme Court of North Carolina.
June 30, 1960.
*22 Jordan, Dawkins & Toms, Raleigh, for plaintiff, appellee.
T. W. Bruton, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Giles R. Clark, Raleigh, and Carl C. Churchill, Members of Staff, for defendants, appellants.
BOBBITT, Justice.
Analysis of the complaint discloses:
1. The action is solely for injunctive relief, specifically to require defendants, in their official capacities, to discontinue operation of Camp Polk Prison on the site where it has been and is now maintained.
2. Plaintiff's property is on Lake Boone Trail, within one mile of the corporate limits of Raleigh and "in close proximity" to Camp Polk Prison. A part of Camp Polk Prison is also located within one mile of the limits of Raleigh.
3. There are approximately five hundred residences within a radius of one mile of Camp Polk Prison, but there is no allegation that plaintiff's property is within this area.
4. Escapees and other prisoners, including discharged prisoners, have committed serious crimes "in the area" surrounding Camp Polk Prison, or have trespassed upon the property of residents "of the area" in such manner as to constitute a threat to the safety of such persons and their property, but it is not alleged that any such incident has occurred on plaintiff's property or in the immediate vicinity thereof or that plaintiff or any member of his household has been directly affected thereby.
5. The alleged ground for injunctive relief is the apprehension that plaintiff's safety and property is endangered by acts of escapees and other prisoners, including discharged prisoners, on property beyond the limits of Camp Polk Prison; but there is no allegation that any condition exists within the limits of Camp Polk Prison that constitutes an annoyance to plaintiff or adversely affects his property.
It is here noted that the decisions upon which plaintiff relies, cited below, relate to factual situations where the plaintiff owned property contiguous, in whole or in part, to the prison property, or so close as to be directly affected by conditions within the jail or prison. All, except the Totten case, infra, deal with annoyances such as alleged unsanitary conditions, obscene, boisterous and disorderly conduct, invasion of privacy by exposure of the plaintiff's premises to the view, remarks and gesticulations of prisoners, etc.
The State Prison Department was created by G.S. § 148-1(a) as the State's agency for the performance of an essential governmental function. A suit against the State Prison Department eo nomine is essentially a suit against the State. Hence, absent constitutional or legislative authority therefor, plaintiff could not maintain such suit. Moody v. State's Prison, 128 N.C. 12, 38 S.E. 131, 53 L.R.A. 855; Schloss v. State Highway Commission, 230 N.C. 489, 53 S.E.2d 517, and cases cited.
*23 While a suit against State officials is not necessarily a suit against the State, "where the state, although not a party to the record, is the real party against which relief is sought, and where a judgment for the plaintiff, although nominally against the officer as an individual, could operate to control the action of the state or subject it to liability," such suit "is to be deemed a suit against the state, and is not maintainable unless the state has consented to be sued." 49 Am.Jur., States, Territories, and Dependencies § 92; Vinson v. O'Berry, 209 N.C. 287, 183 S.E. 423. Whether a suit against State officials is a suit against the State "is to be determined by the essential nature and effect of the proceeding." Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 350, 89 L.Ed. 389, and cases cited.
In Schloss v. State Highway Commission, supra, Barnhill, J. (later C. J.), said [230 N.C. 489, 53 S.E.2d 519]: "When public officers whose duty it is to supervise and direct a State agency attempt to enforce and invalid ordinance or regulation or invade or threaten to invade the personal or property rights of a citizen in disregard of law, they are not relieved from responsibility by the immunity of the State from suit, even though they act or assume to act under the authority and pursuant to the directions of the State." (Our italics.) A statement to like effect was made by Devin, J. (later C. J.), in Teer v. Jordan, 232 N.C. 48, 59 S.E.2d 359.
The official status of defendants, standing alone, does not immunize them from suit. Whether plaintiff can maintain this action depends upon the essential nature and effect of the proceeding, specifically whether the facts alleged, if true, are sufficient to show plaintiff's rights have been invaded or threatened by unlawful conduct on the part of defendants.
It is noted that, while the time, place and circumstances of such incidents are not alleged, the complaint contains general allegations as to crimes and trespasses heretofore committed "in the area." It is noted further there is no allegation as to what incidents, if any, occurred while defendants have held their alleged respective official positions. Even so, plaintiff does allege, upon information and belief, that Camp Polk Prison is maintained and operated by defendants, "in their official capacities," as a "minimum security prison" and that "its inhabitants are not closely confined and are not closely guarded" and are given "considerable freedom."
Under the provisions of Article XI of the Constitution of North Carolina, the General Assembly has plenary authority to provide for a State Prison System. It is noted that Section 1 thereof expressly authorizes "the employment of such convict labor on public works or highways, or other labor for public benefit, and the farming out thereof, where and in such manner as may be provided by law; but no convict shall be farmed out who has been sentenced on a charge of murder, manslaughter, rape, attempt to commit rape, or arson." Sections 4 and 5 of Article XI expressly recognize that rehabilitation of a prisoner as well as punishment for past criminal conduct is a proper function of prison administration.
The State's prison policy, as defined by the General Assembly, contemplates that able-bodied prisoners shall engage in useful labor, either on the prison premises or elsewhere, G.S. § 148-6, and so "reduce the cost of their keep while enabling them to acquire or retain skills and work habits needed to secure honest employment after their release," G.S. § 148-26. Also, see G.S. § 148-33.1 relating to prisoners granted the option of serving sentences under the "work release plan" therein authorized. The cited provisions, as well as provisions with reference to paroles, G.S. Chapter 148, Article 4, are predicated upon the idea that the ability as well as the disposition of released prisoners to engage in honest employment and become law-abiding members of society is calculated to serve the *24 best interests of the State and of its citizens.
The statutory responsibility of the State Prison Commission, to be exercised at meetings held as provided, is "to formulate general prison policies, to adopt prison rules and regulations, to approve budgetary proposals of the State Prison Department, and to advise with the Director of Prisons on matters pertaining to prison administration." G.S. § 148-1(b). The statutory duty of the Director of Prisons, as executive head of the Department, is to "administer the affairs of the State Prison Department subject to the duly adopted policies and rules and regulations of the Commission." G.S. § 148-1(c). The Director of Prisons, subject to the rules and regulations of the Commission, is expressly authorized to designate the places of confinement within the State Prison System where prisoners committed to his custody shall serve their sentences. G.S. § 148-4, as amended by Chapter 109, Session Laws of 1959.
"The erection and operation of prisons and jails, whether by the state, a county, or a municipality, is a purely governmental function, being an indispensable part of the administration of the criminal law, * *. They are a part of the police system for the preservation of order and the security of society, and are established by the state in the exercise of its sovereign powers, in performance of its duty to provide for the custody, employment, and maintenance of convicts. They are a public necessity." 41 Am.Jur., Prisons and Prisoners § 3; Burwell v. Comrs. of Vance County, 93 N.C. 73; Moody v. State's Prison, supra.
"It is true that nobody would be pleased at the erection of a jail in the vicinity of his residence, but it must be built somewhere. It is a public necessity. It is authorized by law. In no sense, or rather in no legal sense, is it a nuisance. Nothing that is legal in its erection can be a nuisance per se; much less can that which public necessity demands be one." Bacon v. Walker, 77 Ga. 336.
A prison is not a nuisance per se. Hence, the construction of a prison on a site selected by public officials pursuant to statutory authority will not be enjoined. Burwell v. Comrs. of Vance County, supra; Bacon v. Walker, supra; Hughes v. McVay, 113 Wash. 333, 194 P. 565, 14 A.L.R. 681; Baptist Church of Madisonville v. Webb, Tex.Civ.App., 178 S.W. 689. Smith, C. J., speaking for this Court in Burwell v. Comrs. of Vance County, supra, said: "For if they could thus have the aid of the Court, so could residents of any other part of the town, for the same and perhaps stronger reasons, because more thickly settled, as well as contiguous proprietors could prevent the erection elsewhere. The special damage in such case is incidental to what the general interest of the community requires and becomes damnum absque injuria. Otherwise no jail could be built within the town if parties interested as these plaintiffs choose to object."
Whether the maintenance and operation of a prison on the Camp Polk site shall be conducted, either as at present or as enlarged by the construction of additional buildings and facilities, is a matter for determination by the State Prison Commission in the exercise of its discretion. G.S. § 148-3; G.S. § 148-5. Moreover, a minimum security prison is not a nuisance per se; and, absent allegations that defendants are acting otherwise than in good faith in the discharge of their statutory duties, whether Camp Polk Prison shall be operated as a "minimum security prison" is likewise a matter for determination by the Commission in the exercise of its judgment and discretion.
As succinctly stated by Devin, C. J., in Town of Williamston v. Atlantic Coast Line R. R., 236 N.C. 271, 72 S.E.2d 609, 611: "Courts will not undertake to control the exercise of discretion and judgment on the part of the members of a commission in performing the functions of a state agency." When discretionary authority is vested in such commission, the court has no *25 power to substitute its discretion for that of the commission; and, in the absence of fraud, manifest abuse of discretion or conduct in excess of lawful authority, the court has no power to intervene. Sanders v. Town of Smithfield, 221 N.C. 166, 19 S.E.2d 630; Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 484, and cases cited. For a full exposition of this well established principle of law, see opinion of Barnhill, C. J., in Burton v. City of Reidsville, 243 N.C. 405, 407, 90 S.E.2d 700.
The complaint contains no allegation that defendants have acted fraudulently or in such arbitrary manner as to constitute a manifest abuse of discretion. There is no allegation that the Commission has adopted any policy, rule or regulation permitting prisoners to roam the neighborhood at will or to go onto the property or to the homes of residents in the area. Nor is there any allegation that defendants have failed in any way to use all means at their disposal to punish such violations of its rules and regulations as occur and to prevent recurrence of such violations in the future. Nor is there any allegation that defendants have failed to discipline or discharge subordinate employees who may have granted liberties to prisoners in violation of the Department's policy, rules or regulations, or who may have been negligent in the enforcement of the Department's policy, rules and regulations. It is common knowledge that, notwithstanding all efforts of the State Prison Commission and of the Director of Prisons, prisoners do escape from maximum security prisons as well as from minimum security prisons; and that escaped prisoners, as well as persons who are not prisoners, have committed crimes both in the neighborhood of prisons and elsewhere.
Since plaintiff does not allege that defendants have established and maintained or that they threaten to establish and maintain "a prison policy for Camp Polk Prison allowing prisoners to be away from guarded supervision in the vicinity of the camp and to roam at will about the surrounding neighborhood," the interlocutory order restraining defendants from establishing and maintaining such prison policy was improvidently entered and is vacated.
Plaintiff directs our attention to this statement from 41 Am.Jur., Prisons and Prisoners, § 8: "Authority to erect and maintain such an institution does not carry with it authority so to manage and conduct it as to create a nuisance, and if a penal institution is maintained in such a manner as unreasonably to interfere with the comfort, use, and enjoyment of property in the neighborhood, the maintenance thereof may be restrained as a nuisance or may warrant the recovery of damages." Also, see 66 C.J.S. Nuisances § 53. All cases cited in support of these general statements are referred to herein. Indeed, the opinion in Burwell v. Comrs. of Vance County, supra, states, by way of dictum, that a directly affected property owner may reasonably require that a jail be so managed "as to occasion as little inconvenience and discomfort to those living near as is consistent with the public purposes to be subserved."
Pritchett v. Board of Com'rs, 42 Ind.App. 3, 85 N.E. 32, is the only decision that has come to our attention in which it was held that plaintiff was entitled to injunctive relief. It was held that the plaintiff was entitled to relief from the nuisance of invasion of his privacy by prisoners looking into his house through open jail windows, specifically, that plaintiff was entitled to have the windows of the jail next to his residence kept closed.
In Pritchett, it was also held that the County Commissioners were not liable for damages on account of the way a jail was conducted, but the sheriff, who had control of the prisoners, and the jailor, who had control of the jail, may be liable. In the latter respect, Wehn v. Commissioners of Gage County, 5 Neb. 494, 25 Am.Rep. 497, and City of Bowling Green v. Rogers, 142 Ky. 558, 134 S.W. 921, 34 L.R.A.,N.S., 461, are in accord. In this connection, see *26 Threadgill v. Commissioners, 99 N.C. 352, 6 S.E. 189.
In Dunkin v. Blust, 83 Neb. 80, 119 N.W. 8, the court, at the instance of a taxpayer, enjoined the construction of a village jail solely on the ground the trustees of the village had not complied with statutory provisions requiring (1) publication of notice of the estimated expense and (2) appropriation of funds to defray such expense. The relevancy of this decision is not apparent.
In Long v. City of Elberton, 109 Ga. 28, 34 S.E. 333, 46 L.R.A. 428, 77 Am.St.Rep. 363, plaintiff instituted the action against City of Elberton for the recovery of damages. He alleged defendant had selected and built a "City Prison" within 100 feet of his property, which included a hotel in which he and his family resided. He alleged defendant maintained this prison in such manner as to constitute a nuisance, alleging with particularity the offensive conditions at said prison which rendered his property less desirable and impaired its market value. A judgment, sustaining demurrer to amended complaint, was affirmed.
Plaintiff cites District of Columbia v. Totten, 55 App.D.C. 312, 5 F.2d 374, 40 A.L.R. 1461, as directly in point and quotes extensively from the opinion. In substance, Totten alleged, and offered evidence tending to establish, these facts: Totten owned a tract of land in Fairfax County, Virginia. The District of Columbia, referred to in the opinion as a municipal corporation, acquired "a neighboring and partly contiguous tract of land" in Fairfax County, Virginia, and commenced construction of permanent structures and buildings thereon for use as a workhouse and prison. This construction work was done by prison labor. Prisoners so engaged and other prisoners were insufficiently guarded, frequently escaped and as escapees or prisoners overran the community, specifically the premises of Totten, terrorizing the residents to such extent that Totten and his family were compelled to abandon their home and live elsewhere. A judgment in favor of Totten against the District of Columbia, in accordance with verdict, was affirmed by the District of Columbia Court of Appeals (a three-judge court), Chief Justice Martin dissenting.
It appears that Totten's recovery was for damages he sustained "on account of his being deprived of the enjoyment of the use of his premises, on account of a nuisance maintained by the defendant in the manner in which it attempted to perform the function of keeping prisoners and using prison labor to build the prison in which to keep them." (Our italics.) Whether Totten was entitled to injunctive relief was not involved or discussed. As to the right to recover damages, the Totten case appears to be in conflict with decisions heretofore cited unless a distinction is drawn from the fact that the District of Columbia had constructed and operated a prison outside of its own territorial limits.
Plaintiff does not attempt to allege a cause of action for damages against the defendants as individuals. In this connection, see Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, and cases cited. Nor does he attempt to allege a cause of action for damages against the State. Rather, he asks the court to require the defendants to do what must be done, if at all, in the exercise of their discretionary authority as public officials. Obviously, defendants, as individuals, have no authority with reference to the maintenance of the State Prison System.
The Commission, in the exercise of its official duties, is the State agency empowered by the General Assembly to perform an essential governmental function. If it cannot maintain Camp Polk Prison at its present location, the State itself cannot do so. Hence, plaintiff's action, in its essential nature and effect, is an action against the State. The facts alleged are insufficient to entitle plaintiff to maintain such action.
We have not overlooked plaintiff's allegations that the present site of Camp Polk *27 Prison is in an area restricted to residential use by zoning ordinances of the City of Raleigh. Too, we are advertent to the fact that the demurrers do not specifically assert a failure of plaintiff to allege a cause of action in this respect. Obviously, this was considered a secondary phase of the case. Indeed, plaintiff submitted no argument bearing thereon.
Plaintiff pleaded, by general reference, the charter of the City of Raleigh, and Chapter 160, Article 14, of the General Statutes. In respect of zoning, these are enabling acts. Also, plaintiffs pleads, by specific reference, "Section 24-12(f) of the City Code of Raleigh," ostensibly a provision of a zoning ordinance; but plaintiff does not plead, by reference or otherwise, any ordinance provision purporting to restrict to residential use the area in which Camp Polk Prison is located. Where a plaintiff bases his right of action on the provisions of a city ordinance, such ordinance must be pleaded. G.S. § 160-272; Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 343, 88 S.E.2d 333.
Moreover, the facts alleged as to the location of plaintiff's property are insufficient to show he is entitled to relief on the ground that the operation and maintenance of Camp Polk Prison is a nonconforming use in violation of a city ordinance. City of Shelby v. Lackey, 236 N.C. 369, 72 S.E.2d 757; Harrington & Co. v. Renner, 236 N.C. 321, 327, 72 S.E.2d 838; City of Goldsboro v. W. P. Rose Builders Supply Co., 200 N.C. 405, 157 S.E. 58. "It is not enough for the plaintiff to allege simply that the commission or continuance of the act will cause him injury, or serious injury, or irreparable injury; but he should allege the facts, from which the court may determine whether or not such injury will result." McIntosh, North Carolina Practice and Procedure, § 853(2); Bogey v. Shute, 54 N.C. 180; Lewis v. Roper Lumber Co., 99 N.C. 11, 5 S.E. 19; Porter v. Armstrong, 132 N.C. 66, 43 S.E. 542.
We are constrained to hold that plaintiff's allegations as to alleged violations of zoning ordinances and as to alleged irreparable injury are legal conclusions and that plaintiff's factual allegations are insufficient to state a cause of action on this ground.
Under the circumstances set forth, this Court sustains defendants' demurrers. Hence, the order of December 15, 1959, overruling defendants' original demurrer, is reversed and vacated.
Reversed.
