ant Stetson's possession of the same thereafter was that of a trustee holding for complainant's sole use and benefit; and a further prayer that, if the relief sought against Stetson could not be granted, the defendant Swift be ordered and decreed to pay to complainant the amount of said $15,000 note. The defendants filed separate demurrers to the bill, which were sustained by the court and the bill was dismissed. Gregory v. Swift, 39 Fed. Rep. 708. The complainant thereupon prosecuted his appeal to this court.

The bill having been dismissed by agreement, as respects the defendant Swift, the only questions in the case for our consideration are those relating to the demurrer of the defendant Stetson. That demurrer rests on ten grounds, but the court below considered only one of them, viz., the ninth one, which is as follows: "This bill is defective for want of proper parties, in that it does not make Mary H. Pike, executrix of Frederic A. Pike, Thomas H. Talbot and Francis A. Brooks, or either of them, parties thereto." * We are of opinion that the decree of the court below must stand. The rule as to who shall be made parties to a suit in equity is thus stated Story, Eq. Pl. § 72: "It is a general rule in equity (subject to certain exceptions, which will hereafter be noticed) that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, are to be made parties to it, either as plaintiffs or as defendants, however numerous they may be, so that there may be a complete decree, which shall bind them all. By this means the court is enabled to make a complete decree between the parties, to prevent future litigation by taking away the necessity of a multiplicity of suits, and to make it perfectly certain that no injustice is done, either to the parties before it, or to others, who are interested in the subject-matter, by a decree which might otherwise be grounded upon a partial view only of the real merits. When all the parties are before the court, the whole case may be seen; but it may not, where all the conflicting interests are not brought out upon the pleadings by the original parties thereto. See, also, 1 Daniell, Ch. Pl. & Pr. 246 et seq. In the case before us we are unable to see how any final decree could be rendered affecting the parties to the contract sued on without making them all parties to the suit. It is an elementary principle that a court cannot adjudicate directly upon a person's right without having him either actually or constructively before it. This principle is fundamental. The allegations of the bill show that the contract sued on was made and entered into subsequently to the termination of the proceedings before the referee. By the terms of that contract the note in dispute between Mrs. Pike and the complainant was to be held by the bailee, Stetson, "subject to the joint order and direction" of their respective attorneys. It seems too plain to require argument that complainant Gregory, Mrs. Pike, Talbot, Brooks and Stetson, all had an interest in the subject matter of the contract,-such an interest, too, as brings the case within the rule

the court below, and it is also pressed, here, that, Mrs. Pike being a non-resident and beyond the jurisdiction of the court, it was impossible to join her as a party defendant to this suit, and that it was therefore unnecessary to attempt to do so. The court below ruled against the complainant on this point, and we see no error in that ruling. The general question involved therein has been before this court a number of times, and it is now well settled that, notwithstanding the statute referred to and the forty-seventh equity rule, a circuit court can make no decree in a suit in the absence of a party whose rights must necessarily be affected thereby. Shields v. Barrow, 17 How. 130, 141, 142; Coiron v. Millaudon, 19 How. 113, 115, and cases there cited. But, even admitting the complainant's contention as regards the making of Mrs. Pike a party to this suit, it does not follow that Talbot and Brooks should not have been made parties. As we have shown, they had a substantial interest in the subject-matter of the contract sued on, and they should have been made parties to the suit. We see no error in the decree of the court below prejudicial to the complainant, and it is therefore affirmed.

(134 U. S. 31)

EILENBECKER et al. v. DISTRICT COURT OF
PLYMOUTH COUNTY.1
(March 3, 1890.)
CONSTITUTIONAL LAW-LIMITATIONS-DUE PROCESS
OF LAW-CONTEMPTS.

1. Const. U. S. art. 3, § 2, cl. 3, providing that the trial of crimes shall be by jury, and articles 5, 6, and 8, of the amendments to the constitution, providing that no person shall be held to answer for crime unless on presentment by a grand jury; that, in all criminal prosecutions, the accused shall have the right to a speedy trial by an impartial jury, and to be confronted by the witnesses against him; and that no excessive fines or cruel or unusual punishments shall be imposed, apply exclusively to the powers exercised by the federal government, and do not limit the powers of the

states.

2. Under Acts 20th Gen. Assem. Iowa, c. 143, § 12, authorizing an injunction to restrain the illegal sale of intoxicating liquors, and providing that a person violating such injunction shall be punished for the contempt by fine or imprisoninent, or both, in the discretion of the court, summary proceedings by a state court, imposing fine and imprisonment for contempt in violating such an injunction issued by it, without presentment or indictment, or trial by jury, are due process of law, within the meaning of Const. U. S. Amends. art. 14.

Wm. A. McKenney, for plaintiffs in error. 1. S. Struble and A. J. Baker, for defendant in error.

MILLER, J.* This is a writ of error to the supreme court of the state of Iowa. The judgment which we are called upon to review is one affirming the judgment of the district court of Plymouth county in that state. This judgment imposed a fine of $500 and costs on each of the six plaintiffs in error in this case, and imprisonment in the jail of Plymouth county for a period of three months; but they were to be released from confinement if the fine imposed was 1Affirming 28 N. W. Rep. 551.

⚫34

*33

paid within 30 days from the date of the Judgment. This sentence was pronounced by the court as a punishment for contempt in refusing to obey a writ of injunction, issued by that court, enjoining and restraining each of the defendants from selling, or keeping for sale, any intoxicating liquors, including ale, wine, and beer, in Plymouth county; and the sentence was imposed upon a hearing by the court, without a jury, and upon evidence in the form of affidavits. It appears that on the 11th day of June, 1885, separate petitions in equity were filed in the district court of Plymouth county against each of these plaintifis in error, praying that they should be enjoined from selling, or keeping for sale, intoxicating liquors, including ale, wine, and beer, in that county. On the 6th of July the court ordered the issue of preliminary injunctions as prayed. On the 7th of July the writs were served on each of the defendants in each proceeding by the sheriff of Plymouth county. On the 24th of October, complaints were filed, alleging that these plaintiffs in error had violated this injunction by selling intoxicating liquors contrary to the law, and the terms of the injunction served on them, and asking that they be required to show cause why they should not be punished for contempt of court. A rule was granted accordingly, and the court, having no personal knowledge of the facts charged, ordered that a hearing be had at the next term of the court, upon affidavits; and on the 8th day of March, 1886, it being at the regular term of said district court, separate trials were had upon evidence in the form of affidavits, by the court without a jury, upon which the plaintiffs were found guilty of a violation of the writs of injunction issued in said cause, and a sentence of fine and imprisonment, as already stated, entered against them. Each plaintiff obtained from the supreme court of the state of Iowa, upon petition, a writ of certiorari, in which it was alleged that the district court of Plymouth county had acted without jurisdiction, and illegally, in rendering this judgment; and, by agreement of counsel and with the consent of the supreme court of Iowa, the cases of the six appellants in this court were submitted together, and tried on one transcript of record. That court affirmed the judgment of the district court of Plymouth county, and to that judgment of affirmance this writ of error is prosecuted.

5 and 6 of the amendments to the constitu tion of the United States,-the latter of which provides that in all criminal prosecutions the accused shall enjoy the right to be confronted by the witnesses against him. The fourth assignment is that the supreme court erred in not holding that section 12 of chapter 143 of the Acts of the 20th General Assembly of Iowa is in conflict with article 8 of the amendments to the constitution of the United States, which provides that excessive fines shall not be imposed, nor cruel and unusual punish ments inflicted. These three assignments, as will be presently seen, may be disposed of together. The third assignment is that the supreme court of Iowa erred in not holding that said chapter 143 of the Acts of the 20th General Assembly of Iowa, and especially section 12 of said chapter, is void, and in conflict with section 1 of article 14 of the amendments to the constitution of the United States, in this, that it deprives persons charged with selling intoxicating liquors of the equal protection of the laws, and it prejudices the rights and privileges of that particular class of persons, and denies to them the right of trial by jury, while in all other prosecutions the accused must first be presented by indictment, and then have the benefit of trial by a jury of his peers.

The first three of these assignments of error, as we have stated them, being the first and second and fourth of the assignments as numbered in the brief of the plaintiffs in error, are disposed of at once by the principle often decided by this court, that the first eight articles of the amendments to the constitution have reference to powers exercised by the government of the United States, and not to those of the states. Livingston v. Moore, 7 Pet. 469: Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; U. S. v. Cruikshank, 92 U. S. 542; Walker v. Sauvinet, Id. 90; Fox v. Ohio, 5 How. 410; Holmes v. Jennison, 14 Pet. 540; Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. Rep. 580. The limitation, therefore, of articles 5, 6, and 8*of those amendments, being intended exclusively to apply to the powers exercised by the government of the United States, whether by congress or by the judiciary, and not as limitations upon the powers of the states, can have no application to the present case; and the saine observation is more obviously true in regard to clause 3, § 2, art. 3, of the original constitution, that the trial of all crimes, except in cases of impeachment, shall be by jury. This article 3 of the constitution is intended to define the judicial power of the United States; and it is in regard to that power that the declaration is made that the trial of all crimes, except in cases of impeachment, shall be by jury. It is impossible to examine the accompanying provisions of the constitution without seeing very clearly that this provision was not intended to be applied to trials in the state courts.

This leaves us alone the assignment of error that the supreme court of Iowa dis

of the amendments to the constitution of the United States, because it upheld the

that, for violating such injunction, a person doing so shall be punished for the contempt by a fine of not less than five hundred or more than a thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment, in the discretion of the court. So that the proceeding by which the fine and imprisonment imposed upon these parties for contempt in violating the injunction of the court, regularly issued in a suit to which they were parties, is due process of law, and always has been due process of law, and is the process or proceeding by which courts have from time immemorial enforced the execution of their rders and decrees, and cannot be said to deprive the parties of their liberty or property without due process of law.

The counsel for plaintiffs in error seek to evade the force of this reasoning by the proposition that the entire statute under which this injunction was issued is in the nature of a criminal proceeding, and that the contempt of court of which these parties have been found guilty is a crime for the punishment of which they have a right to trial by jury. We cannot accede to this view of the subject. Whether an attachment for a contempt of court, and the judgment of the court punishing the party for such contempt, is in itself essentially a criminal proceeding or not, we do not find it necessary to decide. We simply hold that, whatever its nature may be, it is an offense against the court, and against the administration of justice, for which courts have always had the right to punish the party by summary proceeding, and without trial by jury; and that, in that sense, it is due process of law, within the meaning of the fourteenth amendment of the constitution. We do not suppose that that provision of the constitution was ever intended to interfere with or abolish the powers of the courts in proceedings for contempt, whether this contempt occurred in the course of a criminal proceeding or of a civil suit.

We might rest the case here; but the plaintiffs in error fall back upon the proposition that the statute of the Iowa legislature concerning the sale of liquors, under which this injunction was issued, is itself void, as depriving the parties of their property and of their liberty without due process of law. We are not prepared to say that this question arises in the present case. The principal suit in which the injunction was issued, for the contempt of which these parties have been sentenced to imprisonment, and to pay a fine, has never been tried, so far as this record shows. We do not know whether the parties demanded a trial by jury on the question of their guilty violation of that statute. We do not know that they would have been refused a trial by jury if they had demanded it. Until the trial of that case has been had, they are not injured by a refusal to grant them a jury trial. It is the well-settled doctrine of this court that a part of a statute may be void, and the remainder may be valid. That part of this statute which declares that no person shall own or keep, or be in any way concerned, engaged, or employed in owning or keeping,

any intoxicating liquors, with intent to sell the same, within this state, and all the prohibitory clauses of the statute, have been held by this court to be within the constitutional powers of the state legislature, in the cases of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273, and Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. Rep. 992, 1257. If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the constitution of the United States to the form of proceedings, or to the court in which this remedy shaй be had. Certainly it seems to us to be quite as wise to use the processes of the law and the powers of the court to prevent the evil as to punish the offense as a crime after it has been committed.

We think it was within the power of the court of Plymouth county to issue the writs of injunction in these cases, and that the disobedience to them by the plaintiffs in error subjected them to the proceedings for contempt which were had before that court. The judgment of the supreme court of Iowa is affirmed.

(134 U. S. 150)

MCMURRAY et al. v. MORAN et al.1

(March 3, 1890.)

RAILROAD BONDS-SUBSEQUENT FRAUDULENT BOND -JURISDICTIONAL AMOUNT.

1. Where a person purchases of a railroad company part of a series of bonds secured by a mortgage on its road, under an agreement with the company that no more of the bonds shall be issued, he is entitled to have such bonds paid out of the proceeds of a sale under the mortgage, in preference to bonds subsequently issued to purchasers with notice of the agreement, but not in preference to bona fide purchasers, where the agreement, though recorded, is not required to be by law, nor made to constitute notice, and no intimation of it is contained in the mortgage.

2. From a judgment of a district court of the United States determining the priority in the application of the proceeds of a sale under a mortgage given by a railroad company to the payment of bonds thereby secured, persons holding less than $5,000 in such bonds have no right of appeal to the supreme court of the United States.

Appeal from the circuit court of the Unit ed States for the district of Nevada.

The "Nevada & Oregon Railroad Company," a corporation of the state of Nevada, by its mortgage or deed of trust executed April 25, 1881, bargained, sold, and conveyed to the Union Trust Company of New York all of the property, franchises, and estate, real and personal, then existing and to be acquired, including its line of road constructed or to be constructed or completed, to secure the payment of 3,000 bonds of $1,000 each, to be issued by the mortgagor, and made payable on the 1st

'Affirming in part 20 Fed. Rep. 80.