Page:North Dakota Reports (vol. 48).pdf/652

 issuance of temporary injunctions in such cases. See authorities supra- Without further discussion we hold that the statute in question is clearly valid in so far as it authorizes an action to be maintained by the state’s attorney and a temporary injunction to be issued at the commencement of the action which will prevent the continued maintenance of the nuisance pending the final judgment.

But that portion of the order which directs the seizure of the premises stands upon a different legal foundation. It is based upon a separate section of the statute, namely, § 9646, which reads as follows:

“If, at the time of granting the temporary injunction described in § 9645, an affidavit shall be presented to the court or judge stating or showing that any of the offenses mentioned in § 9644 are transpiring or being carried on upon the premises mentioned. in the affidavit, particularly describing the said premises where said nuisances are located contrary to law, the court or judge must, at the time of granting the injunction, issue his warrant commanding the officer serving said writ of in- junction at the time of such service to take possession of said room, building or place and take the same into his custody and securely lock and hold the same to abide the final judgment in the action. The expenses for such holding to be taxed as a part of the costs in the action; and such officer shall also take and hold possession of all personal property found on such premises, and shall take and hold the possession of such premises and keep the same closed until final judgment is entered, or until the possession of the same shall be disposed of by an order of the court or judge upon a hearing had before it for such purpose.”

It is contended that the above statute is unconstitutional in that it directs the taking of property without due process of law. It is urged that under this statute, without any prior adjudication whatsoever of unlawful use, a person may be dispossessed of his home, and thus deprived of his property until his right to continue possession can be determined. It is well settled that the constitutionality of a statute does not depend upon what is done under it, nor how it has been applied in a particular case, but upon what may be done under its authority. Coe v. Armour Fertilizer Works, 237 U. S. 413, 35 Sup. Ct. 625, 59 L. ed. 1027. Nor is it permissible to show that, if due process were in fact observed in the particular case, the same result would have been reached in the long run. Coe v. Armour Fertilizer Works, supra.

It will be noticed that the statute provides for no hearing of any sort