Grace, J.
Tbe complaint states a cause of action for tbe discontinuance of a common nuisance, to wit, a bawdyhouse, alleged to bave been maintained at the time of tbe commencement of tbe action and prior thereto at tbe place déscribed in tbe complaint. As proof of the maintaining of tbe nuisance, tbe affidavit of tbe state’s attorney, on information and belief, and tbe affidavit of F. L. Watkins, upon bis own knowledge, were made in support of tbe injunctional proceedings. Tbe answer was a general denial. Tbe affidavits also constitute the evidence in tbe case, by stipulation.
Tbe first point raised by tbe appellants is that tbe affidavits, which by stipulátion constitute tbe proof in tbe action, were insufficient as a matter of law to confer upon tbe court jurisdiction, in that they do not show or furnish any proof that any nuisance ever existed, or that it was transpiring, existing, and being carried on at tbe time of the commencement of tbe action. Tbe main contention of tbe parties in regard to this assignment of error relates to tbe proposition that there is no allegation or statement in tbe affidavits that a nuisance is in existence or was in existence at tbe time of tbe commencement of tbe action. In this case, however, tbe court, in making its injunctional order, bases its order not only on tbe affidavit of tbe state’s attorney and F. L. Watkins, but also upon tbe verified complaint. It will be noticed that tbe complaint alleges that tbe nuisance was being maintained at tbe time of tbe commencement of tbe action, and this is nowhere disproved by any competent testimony, although tbe same is denied in tbe answer; but so far as determining tbe question of jurisdiction is concerned, tbe allegation in tbe complaint, taken together with tbe fact that there was positive proof of tbe existence of tbe nuisance, and these taken together with tbe presumption of tbe continuance of tbe nuisance, it having been shown by competent proof that it did once exist, is sufficient to give tbe court jurisdiction, — and we bold that' tbe court did bave jurisdiction.
As to tbe other assignment of error, which is that tbe court bad no power as a matter of law under our statute to make an order destroying [468]*468the personal property found in the building in which the alleged nuisance is charged to have been maintained, it is a matter of considerable importance, and not easy of solution. The statute referring to that matter is found in Comp. Laws 1913, §§ 9644 — 9651, inclusive. The main section, however, is § 9644. It will be noticed by such section that the existence of such nuisance when it be established in either a criminal or equitable action, upon the judgment of a jury, court, or judge having jurisdiction, and where it is found in any such proceeding that such a place is a nuisance, the sheriff, his deputy, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and closing the same against its use by anyone, and keep the same closed for the period of one year from the date of the judgment decreeing such place to be a common nuisance. IJnder this statute the court, after having found the place under consideration in this complaint to be a nuisance, ordered the house to be closed up- for the period of one year, and all of the personal property therein, consisting of the list of personal property included in the judgment of the trial court, and which it is not necessary to fully describe in this opinion,- — • but generally such personal property consisted of pictures, a piano,clock, heating stove, chairs, tables, vases, beds and bedding, dressers, commodes, a victrola, the usual dining-room furniture, the usual kitchen furniture, and also a trunkful of cut glass (said to be worth about $500), and other furniture of like nature, — destroyed. There is no question under the statute but what the court had a right to close the house for the term of one year. The sole question, therefore, remaining is whether the court had authority, under its inherent equitable powers, to order the destruction of such property being in the house at the time of the continuance of the nuisance, and at least most of it, to some extent, susceptible of use in the continuance and conduct of such nuisance. All of the personal property is such property as could be used for a good and legitimate use, and was such personal property of which a legitimate use could be made. It is different from the dice which are used in a dice game; poker chips and gambling devices or tables or paraphernalia for which no other beneficial use could be generally found, and which would be generally useless excepting in the conduct and operation of gambling games and devices. Our [469]*469statute does not provide that such property may be destroyed. Has the court then the power, in the exercise of its function as a.court of equity, — on the grounds of public policy; for the public good; the moral welfare, the moral safety of the community; and for the protection of the younger members of the community, both male and female, if the court concludes that such property is being used and persistently used to carry on and operate a nuisance, — to order its' destruction ? We are clear that the court has no such inherent power, and the court-has such power only where conferred upon it by the legislature. The United States Supreme Court, in the case of Mugler v. Kansas, 123 U. S. 659, 31 L. ed. 210, 8 Sup. Ct. Rep. 273, has decided with what branch of the government the police power is lodged, and has determined which branch of the government has power to determine questions of police regulation so as to bind all, and has. determined that the legislative branch of the government is the division of the government with which is lodged the power to determine what rules, regulations, and laws of police power shall be enacted and be operative. The United States Supreme Court in such case, speaking through Justice-Harlan, uses the following language, referring to police powers: “Power-to determine such questions so as to bind all must exist somewhere; else society will be at the mercy of the few who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative 'branch of the government. It belongs to that department to exert what are Icnown as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public peace.
■In the case of Balch v. Glenn, 85 Kan. 735, 43 L.R.A.(N.S.) 1080, 119 Pac. 67, Ann. Cas. 1913A, 406, the following is found in the syllabus: “The legislature of the state may declare that to be a nuisance which is detrimental to the health, morals, peace, or welfare of its citizens, and may confer power upon local powers or tribunals to exercise the police power of the state when in the judgment of such tribunals the conditions exist which the legislature has declared constitute such nuisance.”
.We think it is well settled that the power to declare what is a [470]*470nuisance and to enact or bring into existence laws, regulations, powers, and remedies to destroy such nuisance, rests primarily with the legislative branch of the government.
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Grace, J.
Tbe complaint states a cause of action for tbe discontinuance of a common nuisance, to wit, a bawdyhouse, alleged to bave been maintained at the time of tbe commencement of tbe action and prior thereto at tbe place déscribed in tbe complaint. As proof of the maintaining of tbe nuisance, tbe affidavit of tbe state’s attorney, on information and belief, and tbe affidavit of F. L. Watkins, upon bis own knowledge, were made in support of tbe injunctional proceedings. Tbe answer was a general denial. Tbe affidavits also constitute the evidence in tbe case, by stipulation.
Tbe first point raised by tbe appellants is that tbe affidavits, which by stipulátion constitute tbe proof in tbe action, were insufficient as a matter of law to confer upon tbe court jurisdiction, in that they do not show or furnish any proof that any nuisance ever existed, or that it was transpiring, existing, and being carried on at tbe time of the commencement of tbe action. Tbe main contention of tbe parties in regard to this assignment of error relates to tbe proposition that there is no allegation or statement in tbe affidavits that a nuisance is in existence or was in existence at tbe time of tbe commencement of tbe action. In this case, however, tbe court, in making its injunctional order, bases its order not only on tbe affidavit of tbe state’s attorney and F. L. Watkins, but also upon tbe verified complaint. It will be noticed that tbe complaint alleges that tbe nuisance was being maintained at tbe time of tbe commencement of tbe action, and this is nowhere disproved by any competent testimony, although tbe same is denied in tbe answer; but so far as determining tbe question of jurisdiction is concerned, tbe allegation in tbe complaint, taken together with tbe fact that there was positive proof of tbe existence of tbe nuisance, and these taken together with tbe presumption of tbe continuance of tbe nuisance, it having been shown by competent proof that it did once exist, is sufficient to give tbe court jurisdiction, — and we bold that' tbe court did bave jurisdiction.
As to tbe other assignment of error, which is that tbe court bad no power as a matter of law under our statute to make an order destroying [468]*468the personal property found in the building in which the alleged nuisance is charged to have been maintained, it is a matter of considerable importance, and not easy of solution. The statute referring to that matter is found in Comp. Laws 1913, §§ 9644 — 9651, inclusive. The main section, however, is § 9644. It will be noticed by such section that the existence of such nuisance when it be established in either a criminal or equitable action, upon the judgment of a jury, court, or judge having jurisdiction, and where it is found in any such proceeding that such a place is a nuisance, the sheriff, his deputy, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and closing the same against its use by anyone, and keep the same closed for the period of one year from the date of the judgment decreeing such place to be a common nuisance. IJnder this statute the court, after having found the place under consideration in this complaint to be a nuisance, ordered the house to be closed up- for the period of one year, and all of the personal property therein, consisting of the list of personal property included in the judgment of the trial court, and which it is not necessary to fully describe in this opinion,- — • but generally such personal property consisted of pictures, a piano,clock, heating stove, chairs, tables, vases, beds and bedding, dressers, commodes, a victrola, the usual dining-room furniture, the usual kitchen furniture, and also a trunkful of cut glass (said to be worth about $500), and other furniture of like nature, — destroyed. There is no question under the statute but what the court had a right to close the house for the term of one year. The sole question, therefore, remaining is whether the court had authority, under its inherent equitable powers, to order the destruction of such property being in the house at the time of the continuance of the nuisance, and at least most of it, to some extent, susceptible of use in the continuance and conduct of such nuisance. All of the personal property is such property as could be used for a good and legitimate use, and was such personal property of which a legitimate use could be made. It is different from the dice which are used in a dice game; poker chips and gambling devices or tables or paraphernalia for which no other beneficial use could be generally found, and which would be generally useless excepting in the conduct and operation of gambling games and devices. Our [469]*469statute does not provide that such property may be destroyed. Has the court then the power, in the exercise of its function as a.court of equity, — on the grounds of public policy; for the public good; the moral welfare, the moral safety of the community; and for the protection of the younger members of the community, both male and female, if the court concludes that such property is being used and persistently used to carry on and operate a nuisance, — to order its' destruction ? We are clear that the court has no such inherent power, and the court-has such power only where conferred upon it by the legislature. The United States Supreme Court, in the case of Mugler v. Kansas, 123 U. S. 659, 31 L. ed. 210, 8 Sup. Ct. Rep. 273, has decided with what branch of the government the police power is lodged, and has determined which branch of the government has power to determine questions of police regulation so as to bind all, and has. determined that the legislative branch of the government is the division of the government with which is lodged the power to determine what rules, regulations, and laws of police power shall be enacted and be operative. The United States Supreme Court in such case, speaking through Justice-Harlan, uses the following language, referring to police powers: “Power-to determine such questions so as to bind all must exist somewhere; else society will be at the mercy of the few who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative 'branch of the government. It belongs to that department to exert what are Icnown as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public peace.
■In the case of Balch v. Glenn, 85 Kan. 735, 43 L.R.A.(N.S.) 1080, 119 Pac. 67, Ann. Cas. 1913A, 406, the following is found in the syllabus: “The legislature of the state may declare that to be a nuisance which is detrimental to the health, morals, peace, or welfare of its citizens, and may confer power upon local powers or tribunals to exercise the police power of the state when in the judgment of such tribunals the conditions exist which the legislature has declared constitute such nuisance.”
.We think it is well settled that the power to declare what is a [470]*470nuisance and to enact or bring into existence laws, regulations, powers, and remedies to destroy such nuisance, rests primarily with the legislative branch of the government. Our legislature has declared, for instance, that places where intoxicating liquors are kept for sale, or a place to- which persons resort to drink intoxicating liquors, are a nuisance,- and has authorized the abatement of such nuisance and in connection therewith authorized the destruction of any liquors found upon such place. It has also declared that the keeping and maintaining of a place where gambling is carried on is a nuisance, and has authorized the discontinuance of such nuisance and the destruction of all gambling apparatus connected with such place. Our legislature has also enacted a law, being § 9644, Comp. Laws 1913, which defines bawdyhouses, and declares them to be a nuisance, and authorizes any place or house of ill fame, assignation, or prostitution, maintained as a place to which persons may resort or visit-for unlawful sexual intercourse, to be abated and closed up for a period of one year, and has also authorized the officer to take possession of all personal property found on such premises, 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. This is the expression of the legislature upon this subject, and confers the only power relative to such subject which the courts may exercise. In the law enacted by the legislature relating to bawdyhouses, it does not authorize the destruction of the property, and until the legislature enacts such a law the courts are without the inherent power to order the destruction of property used in the maintenance of a bawdyhouse. The court can order that all such property shall be taken possession of by a sheriff or other public officer, whether the same is real or personal property, and retained in the possession of such public officer or other person appointed by the court by its order, for the full term of one year, and may also order that the expenses of holding and caring for such property during the year to be taxed as a part of the costs in the action. This is as far as the legislature has gone, and the court is not authorized to go any farther, in view of the fact that the power to enact laws upon such subject, and to make regulations concerning the abatement of such nuisance and the disposition of the property connected with such nuisance and [471]*471what may be done to abate such nuisance, is lodged wholly and entirely with the legislature.
The case of State ex rel. Robertson v. New England Furniture Co. (State ex rel. Robertson v. Lane), 126 Minn. 78, 52 L.R.A. (N.S.) 932, 147 N. W. 951, Ann. Cas. 1915D, 549, holds that the court may order the destruction of property used in the maintenance of a bawdyhouse. The legislature of Minnesota, however, has enacted a statute directly upon this subject, authorizing the destruction of this property when so used. They do, however, in such case say that equity could have dealt with the property in any way reasonably necessary to suppress the nuisance, meaning thereby that the court of equity could have assumed any powers it saw fit to destroy the nuisance, even in the absence of a statute. We do not believe such holding is sound as applied to nuisances and property of the character here involved, in view of the fact that the power to deal with common nuisances, and to enact laws defining them and for their discontinuance and the disposition of property connected therewith and its destruction, if necessary to abate such nuisance, is lodged wholly and entirely in the legislative branch of government, as is clearly shown from the conclusion reached by the United States Supreme Court in the case referred to, — and there are many other cases to the same point and of like import.
The judgment of the District Court is reversed in so far as it orders the destruction of the property mentioned and set forth in its findings of fact and decree.