possession of the house and shut it up and throw them onto the street. That is not due process of law, and it is a violation of the constitutional guaranty against unreasonable searches and seizures. Due process of law does not mean than an accused party is granted a trial by jury. It does mean that he cannot be thrown out of his house without some hearing or some form of trial. “In judicial proceedings the law of the land requires a hearing before condemnation.” Here is the forceful language of the Supreme Court of the United States:
That a man is entitled to some notice before he can be deprived of his property is an axiom of law to which no citation or authorities would give additional weight.” Roller v. Holly, 176 U. S. 398—409, 20 Sup. Ct. 410, 44 L. ed. 520; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289.
Very easy it would have been for the court to have issued an order to show cause and to have given defendants some hearing and to have confronted them with the witnesses against them. But the prosecution is under a statute which does-not contemplate or provide for any such hearing. Comp. Laws, § 9646. The statute is to the effect that on ex parte affidavits stating certain things the judge shall issue a warrant to dispossess all the parties of their homes without first giving them any opportunity to be heard. The statute is clearly void, and it is void under the decisions cited in the Kansas case. The court there said:
“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, must ascertain in some legal mode, whether the place in question has been or is used so as to make it a common nuisance.”
For those reasons the order of seizure should be reversed.
Grace, C. J. (specially concurring). As we view § 9645, C. L. of 1913, it merely provides for the issuing of a temporary restraining order to prevent the continuance of an alleged nuisance during the pendency of the action, which was commenced to abate it or to restrain a course of unlawful conduct. The restraining order remains in force only until final judgment.
We see no reason why the above section is not a valid one, and we think it is. It is different, however, with § 9646, which, when a tem-
