The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1921-12-31
AN UNANIMOUS
DECISION BY
SUPREME COURT
Holds Section 9646 of the Com.
piled Laws Of 1913 I'm
constitutional
SEC. 9645 CONSTITUTIONAL
The Case Was An Appeal From
The District Court of
Ward County

North Dakota's supreme court, in
an unanimous opinion, held section
. 9,646 OF the Compiled Laws Of 1913
unconstitutional while holding that
section s,e45 was constitutional. The
case was an appeal from the distric,
court Of Ward county. Two actions
were IN the case, one, and that part
OF the case, dealing with the abate:
ment OF nuisance Is specifically up.
held. Section 9,646 provided for the
seizure Of property, it was claimed
without due action Of law, and this
claim the court upheld The result
Is that while the law, making arrange
ments for a temporary injunction in
the case of a bawdy house nuisance
Is upheld the. property cannot be seiz-
ed without due process of law.
Question OF Right.
Speaking Of section 9645, the court
said:
In our opinion there can be NJ
serious question Of the right OF the
legislature u, provide for the issuance
of temporary injunctions in suc:=
cases. Without further discussion, we
hold that the statute in question is
clearly valid insofar as it authorizes
an action to- be maintained by the
states attorney and temporary in
junction to be issued at the COM
mencement of the action which will
prevent the continued maintenance OF
the nuisance pending the final judg-
ment.
But that portion Of the order which
directs the seizure of the premises
stands upon different legal founda-
ton. 1t is based upon separate sec
tion of the statute; namely, Section
1886. It is contended that the above
statute is unconstitutional in that il
directs the taking of property without
due process OF law. 1t is urged that
under this statute, without any prior
adjudication whatsoever of unlawful
use, person may be dispossessed Of
his home and thus deprived OF hts
property until his right to continue
possession can be determined. 1t Is
we'll settled that the constitutionalitv
Of statute does mot depend upon
what is done under it, nor how it has
been applied In particular case, but
upon what may be done under It's
authority. Nor is it permissible to
show that II due process were in fact
observed in the particular case the
same result would have been reached
in the long run.
1T will be noticed that the statute
provides for no hearing of any sort
in advance OF the seizure by the Of
ficer. All Of the anterior proceedings
are wholly ex parte. The mere pres
entation of an affidavit, sworn to by
any person stating that certain Of
fenses are transpiring upon the prem
ises, creates 4 mandatory duty upon
the part of the Judge to issue a war
rant commanding the officer to take
and hold possession to abide the ma
Judgment in the action. In our opin'
ion this statute is clearly uhconsti'
tutional in that it directs the taking
OF property without due process o.
law in Violation 81 both the state and
federal constitutions, and the eigh'
teenth section of the state cOnstitu
tion which says that,
= 'The right Of the people to be Sc
cure in their persons, houses, papers
effects against unreasonable searches
and seizures, as shall not be violated
and no warrant shall issue but upor
potable cause, supported by oath o.
affirmation, particularly describing tht
place to be searched and the persor
nnH H1iin ersfn he seized