Page:North Dakota Reports (vol. 48).pdf/655

 from what has been said that the writ of seizure must be discharged. To this extent, the order appealed from is reversed.

and, JJ., concur.

, J. (concurring specially). In this case it appears that each of three detectives subscribed to a paper in the form of an affidavit purporting to be sworn to before another detective. The chances are that the papers were not sworn to, and that they were merely subscribed. Three of the affidavits charge that at a certain time and lace Lillie Doe made improper advances to them, and so they characterized the place in which she lived as a bawdyhouse. On the affidavits, without any finding of facts or any adjudication, the defendants were enjoined from continuing to do wrong. They were told not to do it again, and that was all right. The judge likewise issued an order for the sheriff to take possession of their home and to lock and hold the same; that is, to throw the defendants out of their home onto the street without a moment’s notice. That was dead wrong. If a bad person can be thrown out of his home in that way, a good person—a judge of the Supreme Court—may be thrown out in the same manner. No person has any security. It is said such a procedure has been sanctioned by the United States Supreme Court. Mugler v. Kansas, 123 U. S. 623, 7 Sup. Ct. 273, 31 L. Ed. 205. The Kansas case was under a common nuisance act providing that—

“Upon a judgment of any court having jurisdiction finding a place to be a nuisance, the proper officer shall be directed to shut up and abate the same.”

In reasoning the court says:

“Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the state to be such. It must first find it to be of that character; that is, (the court) must ascertain, in some legal mode, whether * * * the place * * * is being so used, as ‘o make it a common nuisance.”

In this case it does not appear from the warrant of seizure or from any document that the court had made a finding or adjudication as_ to whether or not the place is a common nuisance. Without first giving defendants an opportunity to be heard, the sheriff is ordered to take