Cuyahoga Common Pleas.

"Though such associations are not corporations, they possess some of the attributes of corporations, and in these respects differ from ordinary mercantile co-partnerships. They can sue and be sued in the name of the president or treasurer, and their capital stock is represented by stock certificates which are transferable. The death of a member or transfer of his shares does not dissolve the company, which is thus made capable of perpetuity like a corporation, and it can so hold real or personal property. While the petition does not in terms aver that it is impracticable to bring all shareholders before the court, the impracticability of doing so appears from the allegations as to the nature of the association and the number of its shareholders.

"We see no reason why a judgment against the plaintiff will not be binding upon all whom he represents, or judgment in his favor enure to their benefit. Each stockholder by becoming a member of the association gave his consent as to that rule of its being, that suits in its behalf might be prosecuted according to the law applicable to it, and the judgment in any action so prosecuted with such consent, must necessarily operate upon all as if they were named in the suit."

Now, in 1 Bates Pleading and Practice, p. 70:

"As an unincorporated association can not sue in its own name unless it can come in under the partnership statute; it must sue in the name of its members, and if these are too numerous to be brought on the record, the class suit statute applies.

"The section applies although another statute provides that the association could sue in the name of its president. The rule applies to defendants, and all the members of an unincorporated association need not be brought in, but only enough to insure a fair trial. Van Houton v. Pine, 36 N. J. Eq., 133; Keller v. Tracy, 11 Iowa, 530. So an unincorporated labor union being made a party with one or more members in a representative capacity, an injunction served on the union and all its members. Hillenbrand v. Trades Council, 14 Dec., 628."

Another case is Kealey v. Faulkner, 18 Dec. 493 (7 N. S. 49). I will read from the syllabus:

"One object of Sec. 5008 R. S., is to enable nondescript as

Statler Co. v. Employees' Alliance.

sociations of persons to obtain a standing in court, without inordinate delay and expense, and it is sufficient, both for jurisdiction and for judgment, if the interest that is held in common be fairly represented by those who are in court."

The question in this case is, whether the rule is applicable to both the plaintiff and the defendant. I am not quite sure about that.

In Modern Law of Labor Unions, Secs. 214 and 217, there are some remarks on this question. I read first from page 214: "Technically, proceedings against an unincorporated labor union are proceedings against the members individually, and not in solido against the union, as in the case of incorporated societies, and while the union may sue or be sued by joining all the parties as plaintiffs or defendants, it can neither sue or be sued in its common name either at law or in equity in the absence of some statutory provisions authorizing such procedure."

Then I go forward to Sec. 217:

"In equity the rule in respect to parties to suits by and against unincorporated labor unions, is not so strict as in actions at law. Where the parties are numerous, a bill may be brought by a few of the members or officers in a representative capacity, in behalf of themselves and of other members, and a bill may likewise be maintained against a few of the members or officers, as representing the whole membership of the union.”

Some cases are quoted which I have not examined. This being a suit in equity, the principles prevailing in courts of chancery may well be considered, and it seems to me that there can be no question that where a sufficient number of the members of a voluntary association have been brought before the court so as to be fairly represented, that the bill made against the persons present before the court will bind them and other members of the organization.

Having concluded that an injunction must be issued in this case, I will next speak of the scope of such injunction. In order to make the decree as definite as possible, so that it may be understood, I intend to divide the order into two parts:

First, as applicable to the territory immediately in front of the hotel on both streets, and extending to the middle of the

Cuyahoga Common Pleas.

street. Within that territory I think that the decree should definitely state, so far as it can be done, in words, just what can be done and what can not be done. As I have already indicated, I think that it is lawful to employ pickets, provided they are limited in number and they act in a peaceable way. It seems to me that not exceeding two pickets on each side of that building be allowed, that that would be ample to accomplish all ends to be accomplished by means of pickets. I think also that the persons on picket duty there should not be allowed to continually, or at any time, cry out in loud tones of voices, or make any sort of noise or disturbance; that they should not circulate cards containing any abusive language toward the hotel, or any insinuations with respect to the character of the food served in the hotel. Within the territory I have defined, there should be no obstruction to guests entering and leaving the hotel, and no further conversation with them except a mere announcement that a strike is on within the hotel, and that within the limits I have mentioned there shall be no accosting, talking with or threatening in any manner the present employees of the hotel or any of them.

"MR. STRONG: Your Honor, you say they can not say anything but that there is a strike on?

"THE COURT: I think that is substantially all that should be said to any guests coming to or leaving the hotel, and that that should be done in a quiet manner, and not by getting around the guests on two sides."

Outside of this territory that I have mentioned, I think that a decree may be couched in more general terms, in the first place, that all persons to whom this injunction applies may be enjoined from congregating on the sidewalks in front of the hotel, either by standing or walking back and forth, for the purpose of interfering with, hindering, delaying or stopping the business of the hotel in any form or manner. That they may be enjoined from compelling, inducing, coercing, by threats, intimidation or violence, any of the employees of the plaintiff or any person or persons seeking employment, and also from compelling, inducing, coercing by threats, intimidation or violence, or attempting to induce or coerce by force or violence any of

Statler Co. v. Employees' Alliance.

the employees of plaintiff to leave its service. If they keep far enough away from the hotel, they may carry any banners that the police will allow them to carry.

"MR. STRONG : Is that outside of the middle of the street?

"THE COURT: In that territory there will be no banners. If they bring banners up to the very edge of that territory, I shall enlarge the scope of the injunction to meet that. Perhaps I had better add a few feet to the territory mentioned."

INJUNCTION-NUISANCE.

[Cincinnati Superior Court, February 13, 1915.]

*JOHN STORY V. UNION REDUCTION CO.

Contract with City by Reduction Company not Enjoinable but Injunction Lies against Nuisance in Operation of Plant.

A reduction company which is engaged in collecting and disposing of garbage under a contract entered into with a city under authority of law Secs. 3809, 3649 G. C. and which creates a nuisance by the manner in which it operates its plant, cannot be enjoined from continuing to carry out the contract, but will be enjoined from continuing the nuisance.

Thomas H. Kelley, for plaintiff.

Peck, Shaffer & Peck and Healy, Ferris & McAvoy, for defendant.

PUGH, J.

John Story, the plaintiff, at the time this action was brought and for many years before and ever since lived at No. 4062 Liston avenue in the city of Cincinnati, something less than onehalf mile east of the point at which the works of the defendant, the Union Reduction Company, are located. This company is engaged in the business of reducing or rendering animal and vegetable offal and garbage, converting the raw material into fertilizer and extracting the oils and greases.

The plaintiff complains that the defendant company is and has been carrying on its business in such a way as to create a nuisance by discharging into the atmosphere noisome and offen

*Affirmed, Story v. Union Reduction Co. 36 O. C. C. 503; motion to certify overruled, May 29, 1916.

Cincinnati Superior Court.

sive gases and smoke to such an extent and so frequently repeated that it has become injurious to his health, property and comfort. The alleged nuisance is laid, with a continuendo, from June 1st, 1913, up to date, and the court is asked to enjoin the further carrying on of the business or, at least, enjoin its being carried on in such a way that it will continue to be a nuisance.

The defendant denies that it is or has been creating a nuisance by the manner in which it carries on business, and claims that it has built and improved its plant in the most scientific and approved way, has installed the most effective deodorizing devices and that it is neither possible nor necessary to do anything more.

1. The Union Reduction Company is operating under a contract with the city of Cincinnati by which it gathers up and disposes of the animal and vegetable refuse garbage of the entire city. This contract the city is authorized to make by the Jaws of this state, Secs. 3809, 3649 G. C. In doing this work, it is, in effect, exercising a municipal function, authorized by law, and, even if there resulted what would otherwise constitute a nuisance, this court has no power to prevent the defendant from continuing such work as long as it keeps within the terms of the law and the contract. Toledo Disposal Co. v. State, 89 Ohio St. 230 [106 N. E. Rep. 6].

2. There is nothing in the law or the contract, however, which authorizes the defendant to carry on its work in such a manner as to create a nuisance. Indeed, it is expressly stipulated in the contract with the city that it shall employ such a process "that is not offensive or noisome in its operation." If the process used or the manner of operation creates a condition of affairs which is recognized by a court of equity as one which should be enjoined at the instance of this plaintiff, the injunction should issue.

3. There is a great mass of testimony in this case-much of it impossible to reconcile and the court cannot undertake to discuss it in detail. The ultimate finding of fact is as follows:

(a) That, at certain times, a nuisance is created by the way in which the defendant's plant is operated.

(b) That the nuisance is of such a nature and of such fre