Grand Forks herald. [volume] (Grand Forks, N.D.) 1916-1955, 1922-01-02
CANNOT SEIZE
PROPERTY ,SAYS
SUPREME COURT
Injunction in Case Of Bawdy
House Nuisance Upheld
By Justices.

Bismarck. n. d.. June 2.-North
Dakota's supreme court. in an un-
m opinion. held section 9646 of
tne COMPLIED Laws Of 1913 un,consti-
tutlonal white holding that section
se45 was constitutional. The case was
an appeal from the district court OF
ward county. Two actions were in
the ease. one. and that part of the
with: thu abatement of a
nuisance Extraordinarily upheld. Sec
Won ?646 Drovided for the seizure of
property, it was claimed with due ac-
Ion or law and this claim the court
upneld Lbs result is that while the
Jaw, making arrangements for a tenn
noFary Injunction in the case Of a
Dawdy house nuisance is upheld. the
property cannot be seized without due
process of law.
Opinion OH Sec. 9845.
Speaking of section 9645, the court
said:
In our opinion there can be no
serious question of the right of the
legislature to provide for .the issuance
OF TEMPORARY iniunctiods in such
cases. Without further discussion.
Is clearly valid insofar as 1t authorizes
an action to be maintained by the
states attorney n a 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 prem
.ises stands upon a different legal
foundation, 1t is based upon a sep
arate section Of the statute: namely,
Section 1856. 1t is contepded that the
above statute is unconstitutional III
that it directs the taking of property
without due process Of aw. 1t is arg
cd that under this statute, without
n prior adjudication Whatsoever OF
unlawful use. a nerson may be dis
possessed Of his home. and thus de-
prived of his" property until his rign,
to continue possession can be de.
tcrmined. 1t is we'll settled that the
constitutionality of a statute does not
depend upon what is lone under it
nor how it has been applied III a par
ticular case. but upon what may be
done under it's authority. Nor is il
permissible to show that if due proc
css were in fact observed in The par,
ticular 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 If
OF the seizure BY the Omcer
All of the anterior proceedings are
wholly K parte. The mere presenta'
ton of an affidavit. sworn to by am
person stating that certain onense:
are TRANSPORTING upon the premises
creates a mandatory duty ID the
part of the judge to issue a warran.
commanding the officer to take ant
hold possession to- abide the flna
Judgment in the action. In III opinion
this statute is clearly unconstitut.ona
in that it directs the taxing of prop
.erty without due process of law in VIC
lation of both the state and, fedora
constitutions. and tho eighteenth sec
ton of the state const ,ution which
says that. the right of the people t
be secure in their persons houses. pa
pers effects against unreasonable
searches, and seizures shall not b.
violated: and no warrant shall issu'
but uDon probable cause supported
by oath or affirmation particular!
describing the place to be searched
and the person and thing to b
seized"