¶1(concurring specially). In this case it appears that each of three detectives subscribed to a paper in the form of an affidavit purporting to be sworn to before another detective. The chances are that the papers were not sworn to, and that they were merely subscribed. Three of the affidavits charge that at a certain time and place Lillie Doe made improper advances to them, and so they characterized the place in which she lived as a bawdyhouse. On the affidavits, without any finding of facts or any adjudication, the defendants were enjoined from continuing to do wrong. They were told not h> do it again, and that was all right. The judge likewise issued an order for the sheriff to take possession of their home and to lock and hold the same; that is, to throw the defendants out of their home onto the street without a moment’s notice. That was dead wrong. If a bad person can be thrown out of his home in that way, a good person-i-a judge of the Supreme Court — may be thrown out in the same manner. No person has any security. It is said such a procedure has been sanctioned by the United States Supreme Court. Mugler v. Kansas, 123 U. S. 623, 7 Sup. Ct. 273, 31 L. Ed. 205. The Kansas case was under a common nuisance act providing that—
“Upon a' judgment of any court having jurisdiction finding a place to be a nuisance, the proper officer shall be directed to shut up and abate the same.”
¶2In reasoning the court says:
“Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the state to be such. It must first find it to be of that character; that is, (the court) must ascertain, in some legal mode, whether … the place … is being so used, as to make it a common nuisance.”
¶3In this case it does not appear from the warrant of seizure or from any document that the court had made a finding or adjudication as to whether or not the place is a common nuisance. Without first giving defendants an opportunity to be heard, the sheriff is ordered to take *632possession of the house and shut it up and throw them onto the sti-eet. That is not due process of law, and it is. a violation of the constitutional guaranty against unreasonable searches and seizures. Due process of law does not mean than an accused party is granted a trial by jury. It does mean .that he cannot be thrown out of his house without some hearing or some form of trial. “In judicial proceedings the law of the land requires a hearing before condemnation.” Here is the forceful language of the Supreme Court of the United States:
“That a man is entitled to some notice before he can be deprived of his property is an axiom of law to which no citation or authorities would give additional weight.” Roller v. Holly, 176 U. S. 398—409, 20 Sup. Ct. 410, 44 L. ed. 520; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Stuart v Palmer, 74 N. Y. 183, 30 Am. Rep. 289.
¶4Very easy it would have been for the court to have issued an order to show cause and to have given defendants some hearing and to have confronted them with .the witnesses against them. But the prosecution is under a statute which does not contemplate or provide for any such hearing. Comp. Daws, § 9646. The statute is to the effect that on ex parte affidavits stating certain things the judge shall issue a warrant to dispossess all the parties of their homes without first giving them any opportunity to be heard. The statute is clearly void, and it is void under the decisions cited in the Kansas case. The court there said:
“Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the state to be such. It must first find it to be of that character; that is, must ascertain in some legal mode, whether the place in question has been or is used so as to make it a common nuisance.”
¶5For those reasons the order of seizure should be reversed.
¶6(specially concurring). As we view § 9645, C. L. of 1913, it merely provides for the issuing of a temporary restraining order to prevent the continuance of an alleged nuisance during the pendency of the action, which w&s commenced to abate it or to restrain a course of unlawful conduct. The restraining order remains in force only until final judgment.
¶7We see no reason why the above section is not a valid one, and we think it is. It is different, however, with § 9646, which, when a tem*633porary injunction is issued, as provided in § 9645, authorizes the court or judge, at the time he issues the temporary injunction restraining the alleged nuisance, also to issue his warrant to the officer serving the writ of injunction to take possession of the room, building, or place into his custody, and to securely lock and hold the same to abide the final judgment in the action, and likewise to take and hold possession of any personal property found on the premises.
¶8It is thus clear from the latter section that the possession of the property, either real or personal, mentioned in the section, may be taken from one against whom the proceeding is brought before there is any opportunity for a hearing, and before final judgment. This clearly would be taking property without due process of law. I am therefore of the opinion that § 9646 is clearly unconstitutional.
¶9In the case of State v. Bennett, 37 N. D. 465, 163 N. W. 1063, L. R. A. 1917B, 1076, it was held that the section last mentioned did not authorize the destruction of useful personal property found on the premises. The writ of seizure should be discharged, and the order appealed from modified accordingly.