State ex rel. Herigstad v. McCray

• Decision Date: 30 December 1921
• Parties: STATE ex rel. HERIGSTAD, State's Atty., v. McCRAY et al.
• Court: North Dakota Supreme Court

48 N.D. 625

186 N.W. 280

STATE ex rel.

HERIGSTAD, State's Atty.,

v.McCRAY et al.

Supreme Court of North Dakota.

Dec. 30, 1921.

Syllabus by the Court.

Section 9645 of the Compiled Laws of 1913, which provides for the granting of a temporary injunction at the commencement of an action to abate a bawdyhouse nuisance, is not unconstitutional as depriving a person of life, liberty, or property without due process of law.

A human habitation is not a nuisance per se, and, to be a nuisance, it must have become inherently dangerous or subjected to some harmful or unlawful use.

Property which is not a nuisance per se may not be summarily and without notice or hearing taken or destroyed in order to abate a nuisance. It can be treated as a nuisance only after it is adjudicated to be such.

Section 9646 of the Compiled Laws of 1913, which directs the seizure and retention of property alleged to be used as a bawdyhouse, which seizure is without notice and without a hearing to determine whether such place be a nuisance in fact, 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 directing an unreasonable seizure of the same.

Appeal from District Court, Ward County; Moellring, Judge.

Proceeding by the State of North Dakota, upon the relation of O. B. Herigstad, State's Attorney of Ward County, against Walter McCray and others, to abate a nuisance, and from an order denying defendants' motion to vacate a temporary restraining order and to discharge the writ of seizure, the defendants appeal. Order reversed in part.

E. R. Sinkler, of Minot, for appellants.

O. B. Herigstad, of Minot, for respondent.

BIRDZELL, J.

This is an action brought to abate a nuisance. The appeal is from an order entered denying the motion of the defendants to vacate a temporary restraining order and to discharge a writ of seizure.

The action was instituted by the state's attorney of Ward county, who filed a complaint on information and belief alleging that the defendants occupied certain described real property, and had occupied the same for two years past, maintaining thereon a bawdyhouse, and that, unless restrained, they would continue to maintain such common nuisance. The prayer for relief is:

(1) That the place be adjudged and decreed to be a common nuisance, and that an order may issue to abate it.

(2) That the defendants be perpetually enjoined from using the place as a bawdyhouse.

(3) That a temporary injunction be issued enjoining the defendants, until the further order of the court, from occupying and keeping open the premises as such common nuisance.

(4) That a warrant of search of the premises be issued and an inventory 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.

[1] The appellants contended that the bawdyhouse statute (chapter 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 section 9645, Compiled Laws 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 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.

[2][3][4] 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, section 9646, which reads as follows:

“If, at the time of granting the temporary injunction described in section 9645, an affidavit shall be presented to the court or judge stating or showing that any of the offenses mentioned in section 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 injunction 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 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...