Page:North Dakota Reports (vol. 48).pdf/651

 ventory of the property therein made, and that there be ordered a seizure of the place and a restraint of the defendants from engaging in prostitution or conducting a house of prostitution within the state.

(5) That the plaintiff have judgment for costs, attorney’s fees, and general relief.

The complaint was verified by the state’s attorney upon information ' and belief and was accompanied by affidavits of four qualified persons, each swearing to different occasions when he had been upon the premises and there solicited by one or more of the defendants. Those occasions range from November, 1920, to September 9, 1921. Upon motion of the state’s attorney, the district court, on September 23, 1921, ordered that the defendants be enjoined from maintaining a common nuisance upon the premises, and that they be especially restrained during the pendency of the action from using the premises as a bawdyhouse. An order of seizure was also issued directed to the sheriff, commanding him to take possession of the premises and safely lock and hold the same to abide the final judgment in the action. On September 29, 1921, the defendants moved for a dissolution of the temporary injunctional order and for the discharge of the writ of seizure, and the following day an order was entered denying the motion. This appeal is from that order.

The appellants contended that the bawdyhouse statute (chap. 41 of the Penal Code) is unconstitutional and void in that it directs the taking of property and property rights, without due process of law. It is said that the statute authorizes the property of the defendants to be taken without notice, and without an opportunity to be heard, or to cross-examine the witnesses.

The injunctional order was issued in pursuance of § 9645, Compiled I.aws of 1913. It is temporary in character, and does not prevent the defendants from .using the property in any lawful manner. It only prevents them from maintaining a nuisance or engaging in a course of unlawful conduct pending the final judgment. A bawdyhouse is a nuisance at common law, and is consequently subject to the equitable jurisdiction of courts to abate, even in the absence of statute. A statute that is merely declaratory of the principles upon which equitable interference in such matters proceeds is not unconstitutional. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. ed. 205, and authorities cited in note L. R. A. 1917B, 1078. In our opinion there can be no serious question of the right of the Legislature to provide for the