(dissenting in part). This is an appeal from a judgment or order which is to the effect that the defendants have kept in Bismarck a bawdyhouse, and that the sheriff take possession of the house and keep it securely locked for one year, and destroy all the stoves, beds, furniture, and furnishings of the house, amounting to the value of $2,000 or $3,000. The proceeding was commenced by warrant or order signed by the judge, directing any sheriff, constable, or policeman to take possession of the house, and to lock and hold the same, with all the personal property therein.
If the judgment is valid, then the most innocent party in Bismarck may be charged with the keeping of a bawdyhouse, and at any moment *472of the day or night be may he thrown out of his house and home, and have it locked up and his property destroyed. Such a procedure is unknown to the common law, and it is unknown to common sense and common reason. It leads to the destruction of civil liberty, the burning of Salem witches, and the persecution of those who do not think as we do.
In Blackstone we read that a man’s house is his castle, wherein he may defy even the monarch, but, under the spell of modern reform, if some irresponsible detective, working for his dirty fee, makes affidavit, whether true or false, charging a person with the keeping of a bawdyhouse, then a party may be thrown out of his house and the house and all the property destroyed, and, as in this case, it may all be done in a summary manner and without a trial by jury.
And still the Constitution provides: The right of trial by jury shall be secured to all, and shall remain inviolate. Under constitutional law, before the courts may hang a man, or send him to state’s prison, or throw him out of his house, or destroy his property, they must give him a trial by jury. The right of trial by jury is a thousand times more sacred than the right to abate forbidden houses and to destroy property. Indeed, the Constitution contains nothing to warrant the destruction of property, and it does protect property to the same extent that it protects life and liberty. It reads: All men are by nature equally free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property and reputation, and pursuing and obtaining safety and happiness. The right of trial by jury shall be secured to all, and shall remain inviolate. No person shall be compelled in any criminal case to be a witness against himself, or be deprived of life, liberty, or property without due process of law. Excessive bail shall not be required nor excessive fines imposed, nor shall cruel or unusual punishment be inflicted.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. All courts shall be open, and every person, for any injury done him in his lands, goods, person, or reputation, shall have a remedy by due process of law, and right and justice administered without sale, denial, or delay<
*473These are among the most saered provisions of the Constitution. They cannot be too often repeated. It were well to commit them to memory, and to repeat them morning and evening as we do the Lord’s Prayer and the Ten Commandments. The action is under chapter 59, Laws of 1911, which was house bill No. 136. At the close of the session the bill was rushed through and passed without reading or discussion, contrary to the Constitution. The act declared every bawdy-house to be a common nuisance, to abate which an action may be commenced by any person in the name of the state, and that at the commencement of such action, on an affidavit stating the offense, the judge must grant an injunction .and issue a warrant commanding the officer to take possession of the house and to securely lock and hold the same to abide the final judgment. Then it is provided that a final judgment against the accused shall direct the officer to shut up and abate the place, and to keep the same securely closed for one year.
The statute contains nothing to warrant the destruction of personal property, and, if it did, it would be clearly void, and it is void in declaring a house to be a public nuisance when in fact it may not be a nuisance. A house may be a public nuisance when it overhangs the street, or when it becomes a worthless firetrap and a menace to the city; but shall we say that the McKenzie hotel is a common nuisance, and that it should be closed for one year, by reason of the fact that to some extent it is or may be used, as all hotels are used, for gambling, drinking, and forbidden love? Shall we say that the grass and parks are nuisances to be destroyed because of use in that way ? Shall we sa.y that, on mere affidavits and without trial by jury, any party may be turned out of his house and deprived of his liberty and property ? Even Shyloek disdained to beg for life without his property. He said: You take my life when you do take the means whereby I live.
There is nothing in the record to show that the house in question is a nuisance. Eor aught that appears from the affidavits, it may be one of the nicest and best and most secluded houses in the town. When a party offends against the law he may be punished by the law, and as provided by the law, but not by destroying his property or dispossessing him of lands or houses or home. The. act in question is void. The judgment is void, and it should be reversed.
*465Note. — On right of state to confiscate property found in bawdyhouse, see note in 52 L.R.A.(N.S.) 932.
On validity of statute or ordinance against bawdyhouses, see note in L.R.A.1917B, 1078.