Page:North Dakota Reports (vol. 48).pdf/653

 in advance of the seizure by the officer. All of the anterior proceedings are wholly ex parte. The mere presentation of an affidavit sworn to by any person stating that certain offenses are transpiring upon the premises creates a mandatory duty on the part of the judge to issue a warrant commanding the officer to take and hold possession to abide the final judgment in the action. In our opinion this statute is clearly unconstitutional in that it directs the taking of property without due process of law in violation of both the state and federal Constitutions, and the eighteenth section of the state Constitution, which says that—

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”

There is no higher property right known to the law than the right of the individual to the possession of his home, and the deprivation of this right, even temporarily, is not to be sanctioned unless ample legal cause be first shown to exist. The home of an individual, high or low, saint or sinner, does not become a nuisance per se upon a complaint signed upon information and belief, accompanied by an affidavit of some person that it is being used as a bawdyhouse. The information may not be well founded, and the affidavit may not be true. Prior to the dispossession commanded by the statute there is no opportunity to determine whether the one is ill-founded and the other false.

A structure fit for the habitation of human beings cannot be a nuisance per se. It can only become a nuisance by virtue of inherent unsafety or through some harmful or illegal use. Where illegal use is relied upon to establish it to be a nuisance, that use must be adjudicated as a fact. When an appropriate judgment is entered to that effect, it may then be promptly abated or otherwise dealt with according to law. Not being a nuisance per se, however, it cannot be treated as such for purposes of abatement prior to such adjudication. By way of emphasis, we may repeat that the property itself is not alleged to be harmful, and it must therefore be presumed to be harmless. It is only the use that is harmful, and such use is promptly enjoined by a temporary injunction. This remedy should be efficacious to put a speedy end to the nuisance without taking the further, and apparently useless, step of seizing the premises without notice to the occupants and without regard to whether