dissenting. I dissent from the judgment and from the last two paragraphs of the syllabus.
The court abused its discretion in levying against local Council 51 and the parent union fines totalling $37,000 ($1,000 for each of 37 days).
For the violation of an injunction which amounts to contempt, the violators can be fined pursuant to E. C. 2705.05 or E. C. 2727.12, or both. Hayes v. Hayes (1919), 11 Ohio App. 10. R. C. 2705.05 provides:
“Upon the day fixed for the trial in a contempt proceeding the court shall investigate the charge, and hear any answer or testimony which the accused makes or offers.
“The court shall then determine whether the accused is guilty of the contempt charge. If it is found that he is guilty, he may be fined not more than five hundred dollars or imprisoned not more than ten days, or both. ’ ’
Since there are two defendants who admitted to violating the injunction, fines totalling $1,000 could have been levied. E. C. 2727.12, as will be shown hereinafter, does not apply. So the levy of $37,000 constituted an abuse of discretion.
*212The majority attempts to justify the fines on four alternate grounds: (1) that each day the strikers were out of work constituted a separate violation of the court order; (2) that the power of the court to impose punishment for contempt cannot be limited by the General Assembly; (3) that civil as well as criminal contempt is involved; and (4) that R. C. 2727.12, allowing restitution for the violation of an injunction, applies here.
As to {he 37 violations, the injunction granted January 6, 1970, enjoined the defendants “from carrying on a strike and/or picketing against the city of Cincinnati, Ohio.” When the workers did not go to work the following day, they violated the injunction because they were “carrying on a strike.” They remained in violation of the injunction until they returned to work. So, there was a violation by the local union and the parent union; and, according to R. C. 2705.05, they were subject to a total of $1,000 in fines. The majority assumes that there was a separate violation of the injunction for each day the workers were not at work. Why not compute a violation for each hour the workers were not working? How is one day decided upon as the period for which a new violation is computed? There is no indication in the statute nor in the Ohio case law to support this novel interpretation.
Secondly, the majority doubts that contempt power can be limited by the General Assembly. As regards direct contempt, the court’s power cannot be limited. State v. Local Union 5760 (1961), 172 Ohio St. 75, 82. In the instant case, however, there is indirect contempt.
Indirect contempt involves actions committed outside the presence of the court, tending to obstruct the due and orderly administration of justice. In the Matter of Lands (1946), 146 Ohio St. 589, 595. The activity in the instant case did not occur in the presence of the court; nor did it fall within the exceptions of Hale v. State (1896), 55 Ohio St. 210, where a witness under subpoena to testify was removed outside of the court’s process, or of State v. Local Union 5760 (1961), 172 Ohio St. 75, where a sheriff was *213prevented from serving a writ of replevin. Indirect contempt is involved here, so the statutory provisions for levying fines must be followed.
The invocation of the court’s summary power for direct contempt is an awesome power that the court must be cautious in using; it should be restricted to activity that threatens the integrity or the very functioning of the judk cial process. The illegal activity here admittedly was eon temptuous; but it was not of a nature that would justify the court’s use of its summary and arbitrary power. I see no reason to extend that power to our situation.
Thirdly, civil contempt is that judicial power used to bring about compliance with lawful court orders. Paragraph three of the syllabus in Windham Bank v. Tomaszczyk (1971), 27 Ohio St. 2d 55, provides:
“The purpose of sanctions in a case of civil contempt is to compel the contemnor to comply with lawful orders of a court * *
The trial in the instant case was held at a time long after the strike was settled. There was no possibility of compelling the contemnor to comply, so there could be no civil contempt. Criminal contempt alone is involved here.
Both Windham Bank v. Tomaszczyk, supra, and United States v. United Mine Workers of America (1947), 330 U. S. 258, are cited as support for the dual, criminal and civil, aspects of this case. Those two cases are readily distinguishable. In those cases, the contemptuous activity continued until the date of trial, and the court could have imposed the sanctions of civil contempt to effect compliance; in the instant case the strike was settled, and there was no purpose for using civil contempt.
Lastly, it is claimed that the fines could be justified under R. C. 2727.12, which provides:
“Upon being satisfied, by affidavit, of the breach of an injunction or restraining order, the court or judge who issued such injunction or order may issue an attachment against the guilty party who shall pay a fine of not more than two hundred dollars, for the ase of the county, make *214immediate restitution to the party injured, and give further security to obey the injunction or restraining order. In default thereof, said party may be committed to close custody until he complies with such requirement, or is otherwise discharged.” (Emphasis added.)
The Restatement of the Law, Restitution, provides, at page 12:
“Section 1.
“A person who has been unjustly enriched at the expense of another is required to make restitution to the other.”
The connection of restitution and unjust enrichment is explained later in the restatement at pages 595-96, as:
“Actions for restitution have for their primary purpose taking from the defendant and restoring to the plaintiff something to which the plaintiff is entitled, or if this is not done, causing the defendant to pay the plaintiff an amount which will restore the plaintiff to the position in which he was before the defendant received the benefit.”
In this case, the unions have not received a windfall; they have not been enriched at all; in fact they are poorer, as a result of the strike.
Therefore, the amount levied in fines should have been limited to a total of $1,000.