acts, in violation of the order of the court. I am glad to be relieved from the necessity of ordering a committal, but Batley must pay the costs of the motion.1

See Seaward v. Paterson, [1897] 1 Ch. 545 (C. A.). On the question whether the contempt in these cases is civil or criminal, see Scott v. Scott, [1913] A. C. 417, 456; Re Reese, 107 Fed. 942 (C. C. A., Sth, 1901); Oswald, Contempt of Court (3d ed.), 106.

A valuable note by P. L. Fussell in 6 Cal. L. Rev. 149 divides the cases on the problem of binding unnamed parties by an injunction of which they have knowledge, into four groups. Some of the cases cited below are taken from this note.

(1) Persons associated with the named parties and enjoined as a class. These were held bound: agents, Wimpy v. Phinizy, 68 Ga. 188 (1881); Daly v. Amberg, 126 N. Y. 490 (1891); Safford v. P., 85 Ill. 558 (1877), federal receiver is " agent "; employees, Re Lennon, 166 U. S. 548 (1897); but cf. Dadirrian v. Gullian, 79 Fed. 784 (N. J., 1897), former employee; aiders and abettors, Conkey v. Russell, 111 Fed. 417 (Ind., 1901); Fowler v. Beckman, 66 N. H. 424 (1891); members of labor unions of which the officers are named. Am. Steel & Wire Co. v. Wire Drawers' etc. Union, 90 Fed. 958 (Oh., 1898), a leading case; grantees and successors, see 505n. On class suits, see F. B. Sayre, Cases on Labor Law, 742n.

(2) Persons not associated with the named parties, but enjoined as a class. These were held bound in Puget Sound v. Lawrey, 202 Fed. 263 (Wash., 1913), "all other persons who shall have knowledge of the making of this order "; St. Joseph v. Hauser, 151 Mo. App. 423 (1910), “all others"; Berger v. Superior Ct., 175 Cal. 719, 722 (1917), semble, "any and all persons, one running against the whole world, as it were." They were held not to be bound in Rigas v. Livingston, 178 N. Y. 20 (1904), “and all other persons having knowledge of this injunction order "; Strawberry Is. v. Cowles, 79 Misc. 279 (1912), "all persons whomsoever." See Tosh v. W. Ky. Coal, 252 Fed. 44 (C. C. A., 6th, 1918), "all persons whatsoever," contempt proceedings brought for acts ten years after injunction.

(3) Persons associated with the named parties, but not enjoined as a class. These were held bound: agents, In re Rice, 181 Fed. 217 (Ala., 1910); aiders and abettors, Parsons v. P., 51 Ill. App. 467 (1893), semble; Hubbard v. Woodfield, 57 Sol. J. 729 (1913); successors, see 505n.

(4) Persons neither associated with the named parties nor enjoined as a class. These were held bound in Chisolm v. Caines, 121 Fed. 397 (S. C., 1903); Garrigen v. U. S., infra, semble; U. S. Taliaferro, 290 Fed. 214, 217 (Va., 1922); S. v. Pittsburg, 80 Kan. 710 (1909). They were held not bound in U. S. Playing Card Co. v. Spaulding, 92 Fed. 368 (S. D. N. Y., 1899); Ex p. S. ex rel. Higdon, 162 Ala. 181 (1909); Becker v. Superior Ct., supra; Boyd v. S., 19 Neb. 128 (1886); Re Zimmerman, 134 App. Div. 591 (1909).

Additional cases are collected in 6 Cal. L. Rev. 149; 15 A. L. R. 386; 23 L. R. A. N.S. 1295. Labor cases are collected in F. B. Sayre, Cases on Labor Law, 737 ff.; C. C. Allen, 28 Am. L. Rev. 851; C. N. Gregory, 11 Harv. L. Rev. 495; 27 A. L. R., 659, 797.

On the necessity of knowledge of the injunction, see Garrigan v. U. S., 163 Fed. 16 (C. C. A., 7th, 1908); S. ex rel. Lindsley v. Grady, 114 Wash. 692 (1921); 15 A. L. R. 398; 23 L. R. A. N.s. 1295; 505n. infra.

Of the injunction in Garrigan v. U. S., which ran against "all persons whomsoever. . . after . . . knowledge . . . of this order," 13 L. N. (N. Y.) 25 says: "Thus the judge strung up a live wire, so to speak, in the community, and while those who were parties to the proceeding knew all about the location of the wire and the danger of contact therewith, no system of government known among civilized people would tolerate the maintenance of such a dangerous contrivance in the path of other persons' totally ignorant of its existence."

NOTE ON CONTEMPT AGAINST UNNAMED PERSONS.

ELDON, C., IVESON v. HARRIS, 7 Ves. 251, 256, 257 (1802): "I have no conception that it is competent to this court to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause. The old practice was that he must be brought into court, so as according to the ancient laws and usages of the country [to] be made a subject of the writ. . . . I find the court has adhered very closely to the principle, that you cannot have an injunction except against a party to the suit. . . . The court has no right to grant an injunction against a person whom they have not brought or attempted to bring before the court by subpoena." Accord, Kent, C., Fellows v. Fellows, 4 Johns. Ch. 25 (1819).

LINDLEY, L. J., SEAWARD V. PATERSON, [1897] 1 Ch. 545, 555 (C. A.): "Lord Eldon is addressing himself to the consideration of what persons are bound by the injunction. He is not dealing with the case of persons who go and assist others in settling the court at defiance; he does not allude to that class of persons at all. The law is defined in a way that is familiar to anybody accustomed to the procedure in Chancery. A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing; and a motion to commit a man for contempt of court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing. . . . In the one case the party who is bound by the injunction is proceeded against for the purpose of enforcing the order of the court for the benefit of the person who got it. In the other case the court will not allow its process to be set at naught and treated with contempt. . . . The distinction between the two kinds of contempt is perfectly well known, although in some cases there may be a little difficulty in saying on which side of the line a case falls." 1

STATE v. PORTER.

P. cona neid livble for contenept for selling in a house where heist had SUPREME COURT, KANSAS, 1907 beepienaind and hindidence a Ridge did not act Kim

[76 Kansas Reports, 411.]

because if was inerem.

UNDER the prohibitory liquor statute, which authorizes a private citizen to bring suit to enjoin the maintenance of a nuisance, as defined in the statute, a suit was brought in the district court of Montgomery county in which the state, on the relation of Fruits, was plaintiff, and Hebrank, Lovejoy, Heckman, and Robinson were defendants. On December 16, 1904, a judgment was rendered perpetually enjoining the defendants, "their agents, employees, successors and assigns, and all persons associating, combining and conspiring with them, and all other persons whomsoever," from keeping and maintaining a nuisance in a certain brick and frame 1 See 502n., 1st par.

building on lot 16, block 42, in the city of Independence, in such The decree was of record in the office of the

county and state.

clerk of the county.

Thereafter, on July 21, 1906, the county attorney by affidavit filed in the suit charged Hebrank and the appellants, Porter and Cummings, with a violation of the injunction. The judge of the court thereupon ordered an attachment to be issued for the arrest of the persons charged, and also ordered the county attorney to file a formal accusation against them, which was done. The appellants were arrested, and after a hearing, were adjudged guilty of contempt of the order of injunction, and to pay a fine of $500 and costs, including a fee of $100 to the county attorney, and to be confined in the county jail for six months. The appellants bring the case here for review.*

SMITH, J. . . . It is contended that, as the appellants were not parties to the injunction suit, they could not be convicted of a violation of the order therein unless they were proved to have had notice or actual knowledge thereof.

The appellants were charged, jointly with John Hebrank, who was the owner of the building and who was a party to the injunction suit, with a violation of the order therein. And, although it appears Hebrank was not arrested or tried for the contempt, there is probably sufficient circumstantial evidence to justify a finding that appellants had knowledge of the order and conspired with Hebrank to evade and violate it. Upon what evidence or presumption the judge based his decision we are not advised by the record. No evidence that they had actual knowledge of the order was necessary. They admit they had possession of the building in which, but a few months before, the owner, his codefendants" and all other persons whomsoever" were enjoined from maintaining just such a nuisance as appellants were maintaining. In wilfully embarking upon an unlawful business they might well be presumed to have scanned every possible source of danger and to have not overlooked so public a proceeding as the injunction suit. It is more probable that they thought they had cunningly evaded it. It matters not. The proceedings of the courts for the maintenance of order and the enforcement of law are not thus to be trifled with. The decree of injunction was against the defendants in that suit, and in a sense was ad rem against the property, or rather against a certain illegal use of the property. It cut off perpetually the use of the property for any of the purposes which the prohibitory liquor law of this state denounces as a nuisance. Thereafter not only the parties to that suit but all persons using the property for any of such unlawful purposes did so at their peril. The judgment is a limitation upon the use of the property of which all subsequent owners or occupants must take notice. It was well said in Silvers v. Traverse, 82 Iowa, 52, 56:

"The decree was against plaintiff's lessor, who was the defendant in the suit. It affected his right and interest in the property; that is, it limited and cut off his power to use the property for the unlawful keeping and sale of intoxicating liquors. The decree was a restriction upon the use of the property which followed it as a burden, and, as it were, an encumbrance. Surely the plaintiff, in taking the property, took it subject to this restriction and burden. In our opinion, these conclusions are based upon familiar doctrines applicable to all actions and proceedings in the courts. If the rule we announce be not recognized, the attempt to enforce injunctions to abate nuisances of all kinds would be vain. The defendant perpetrating the nuisance could wholly defeat the law by leasing or transferring the property to one who had no notice thereof. He could begin anew the perpetration, and could only be enjoined by a new action, and when so enjoined he could in a like manner transfer the property, and so on indefinitely defeating the law, to the scandal of public justice and the oppression of the people."

The judgment is affirmed.1

WALTON LUNCH CO. v. KEARNEY.

SUPREME JUDICIAL COURT, MASSACHUSETTS, 1920.

[236 Massachusetts Reports, 310.]

A BILL in equity was filed in this court by the plaintiff, a corporation engaged in the restaurant business, seeking to enjoin certain named individuals and the "officers and members of a certain voluntary unincorporated association known as the Hotel and Restaurant Employees' International Alliance Union, Local No. 34," from interfering with the business of the plaintiff. The suit was heard by Pierce, J., who entered a final decree, perpetually enjoining the defendants, their agents and servants, from picketing in

1 Accord, S. v. Terry, 99 Wash. 1 (1917), under "Red-Light" statute; see Dermedy v. Jackson, 147 Ia. 620 (1910); Ahlers v. Thomas, 24 Nev. 407 (1899); Aldrich v. Brownell, 119 Atl. 762 (R. I., 1923); cf. Harris v. Hutchinson, 160 Ia. 149 (1913), bar-tender ignorant of injunction. See 21 Harv. L. Rev. 220; 13 L. R. A. N.s. 462; 15 A. L. R. 391, 398; 12 A. L. R. 431; 502n., last two pars.

In S. ". Terry, 99 Wash. 3, Ellis, C. J., said, after stating the general rule that knowledge of the injunction is necessary for contempt: "To this general rule, there is, however, an exception, resting in sound reasons and supported by authority. Where the decree of injunction is not only in personam against the defendants in the injunction suit, but also operates in rem against specific property, or rather against a given illegal use of such property, the decree is a limitation upon the use of the property of which all subsequent owners, lessees, or occupants must take notice. In such a case the decree, if broad enough in its terms to enjoin all persons, is sufficient as a public record to impart constructive notice to all persons."

certain ways and inducing the plaintiff's employees to break their contracts with him. The plaintiff filed a petition for attachment for contempt, and the defendants moved for a trial by jury under St. 1911, c. 339. The motion was heard by Carroll, J., who reported it to the full bench for the consideration of two questions, the first being, "1. Is St. 1911, c. 339, constitutional?" 1

RUGG, C. J. . . . About three weeks after the entry of the final decree a petition for attachment for contempt against the defendants was filed. The petition contained allegations charging as violations of the injunction, the commission of certain crimes and other acts not criminal in their nature. The matter came on to be heard before another justice, who has reserved for our consideration in that connection the question whether St. 1911, c. 339, is constitutional. The pertinent part of the statute is in § 1, which is in these words: "The defendant in proceedings for violation of an injunction, where it appears from the petition filed in court alleging the violation, that the violation is an act which also would be a crime, shall have the right to trial by jury on the issue of fact only, as to whether he committed the acts alleged to constitute the said violation, and the said trial by jury shall take place forthwith, and if there is no sitting of a jury in the county where the contempt proceedings are to be heard, a venire shall issue to impanel a jury forthwith." It is provided by § 2 that the act shall not apply to proceedings in the Probate Court.

It is an essential element of a court that it possesses power to enforce its orders and to protect itself from having its authority flouted. It was said by Chief Justice Gray in Cartwright's Case, 114 Mass. 230, 238, "The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in Courts of Chancery and other Superior Courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of Magna Charta and of the twelfth article of our Declaration of Rights." This statement is complete, unequivocal and binding upon us.2. . . It was said by Beasley, C. J., in State v. Doty, 3 Vroom, 403, 404: "A court would fail, of necessity, to accomplish the end of its institution, if it could not maintain order and enforce obedience to its precepts. The authority is derived from necessity, and the authority ceases only when such necessity ceases." These propositions are accepted as sound by the great weight of authority. Where the question has arisen it usually has been held that it is beyond the power of the legislature to curtail jurisdiction of courts over contempts. There

1 The second question related to the construction of the statute, if constitutional. The statement of facts has been abridged, and a portion of the opinion not dealing with contempt has been omitted.

2 Numerous citations are omitted in this paragraph.