Page:North Dakota Reports (vol. 48).pdf/654

 the security of a home be thereby violated.

The distinction between the summary abatement of a nuisance per se through the destruction of the instrumentality in which the nuisance inheres and the like abatement of a nuisance where property capable of lawful use is involved, is we!l expressed in Freund on Police Power, §§ 525 and 526. ‘The author says:

525. The power of summary abatement does not extend to property in itself harmless and which may be lawfully used, but which is actually put to unlawful use or is otherwise kept in the condition contrary to law. So, if a certain kind of transportation is a nuisance, this does not justify the tearing up of railroad tracks. A house of ill fame may not be torn down summarily; a building where liquor is kept unlawfully for sale may not be destroyed; and a canal may not be destroyed because not kept in a clean condition. The unlawful use may, however, be punished, and the punishment may include a forfeiture of property used to commit the unlawful act. While in many cases this would be an extreme measure, it is subject to no express constitutional restraint except where the constitution provides that every penalty must be proportionate to the offense. * * * 526. Such forfeiture is not an exercise of the police power, but of the judicial power; i. e., the taking of property does not directly subserve the public welfare, but is intended as punishment for an unlawful act. Hence forfeiture requires judicial proceedings, either personal notice to the owner, or at least a proceeding in rem with notice by publication.”

The statute in question directs that the owner or occupant be dispossessed without any hearing whatsoever. In addition to the authorities cited by Freund, the principles stated will be found to be well illustrated in the recent decision of the Supreme Court of Illinois in People v. Marquis, 291 Ill. r21, 125 N. E. 757, 8 A. L. R. 874.

In view of our conclusion that the statute is unconstitutional in that it directs the taking of property without due process of law and violates the security of persons in their houses by authorizing an unreasonable seizure thereof, we deem it proper to say that through our researches we have been unable to find any bawdyhouse statute going to the extreme lengths of the one in question. This court has previously held that this statute does not authorize the destruction of useful personal property found on the premises. State ex rel. McCurdy v. Bennett et al., 37 N. D. 465, 163 N. W. 1063, L. R. A. 1917F, 1076. It follows