(dissenting). I regret that I find myself unable to agree, either in the result reached by the majority of the court, or in the reasoning and conclusions of law toueMng the two questions involved. The facts are set out in the majority opinion with meticulous and admirable accuracy. But upon the two decisive questions propounded in the majority opinion I am constrained to entertain views diametrically in conflict with those enunciated by the majority. These two questions are: (a) “Had the nuisance been abated and the. court’s power in the equity suit spent and exhausted when the sale was made?” and (b) “Did the injunctive order against making sales in the building include an isolated sale such as this, two years and five months after the court’s order, or is it the purpose of section 22 of title 2 of the act to enjoin future conduct that would constitute a renewal, or continuance of the nuisance?”
The opinion of the majority seems to answer the first of these questions in the affirmative and the second in the negative. In other words, the sum of the opinion of the majority on this question is, that the injunction mentioned and provided for in section 22 of the act is not a perpetual injunction against the premises and the defendants in the suit wMle the latter occupy such premises and so long as they occupy the same, but that the injunction operates only for one year against the premises and the defendants in the equity action, even though the defendants continue to occupy such premises.
My view is that the injunction, wMch finally issues upon a hearing on the merits is a permanent or perpetual injunction, and that it operates perpetually, at least, as against the premises described and the defendants named in the equity suit, while occupying such premises. Some discussion has arisen and some diversity of opinion has been held upon the question whether such injunction operates in rem — that is, against the •building itself — regardless of the subsequent ownership or occupants. Cf. U. S. v. Boynton (D. C.) 297 F. 261, and U. S. v. Schwartz (D. C.) 1 F.(2d) 718. The latter question is wholly afield from the conceded facts, and is not herein discussed, nor is it necessary to discuss it.
The power to make an order closing the premises, or (as the vernacular has it) “padlocking” them against legal uses for one year, is discretionary and merely incidental to the perpetual injunction, and for the purpose of bringing about a more certain and thoroughgoing abatement of the nuisance. The giving of a bond in the sound judicial discretion of the chancellor, as permitted by tMs statute, operates merely on the question of permitting use to be made of the premises, short of the actual padlocked period, for lawful uses and purposes, and it has no reference to or vital bearing otherwise on the question of the unlawful use of such premises, or on the extent or duration of the injunction. It is true, that section 22 of the act does not specifically say that the injunctive order is of the nature of a permanent injunction, but subsequent section 24 of title 2 of the act does so denominate it in express language, in providing for the hearing based on contempt.
The term permanent injunction has a defiMte and well-settled meaning in equity, wMch meaning is well known to both bench and bar. Moreover, the pertinent language of the statute is:
“The court shall order that no liquors shall be manufactured, sold, bartered, or stored in such * * * building, * * * or any part thereof. And upon judgment of the court ordering such nuisance to be abated, the court may order that the *. * * building, ' * * shall not be occupied or used for one year thereafter.” Section 22, tit. 2, Act of Oct. 28,1919 (Comp. St. § 10138i/2k).
It will be noted that the language granting power to the court to “order that no liquors shall be * * * sold * * * -in such building * * * or any part thereof” is mandatory, and ends the sentence. The next sentence deals with a different phase of the case and is not mandatory, but says that the court may order that the building shall not be oc*578eupied or used for the period of one year, for any use either lawful or unlawful.
In short, the court is required in a proper case and upon sufficient evidence to issue an injunction, and the court may, or may not in its discretion, further order that the premises be padlocked, against lawful uses even, for a period of one year.
There are grave practical difficulties, which are so obvious as not to call for exposition, in any other view. Surely, it ought not be necessary to bring an equity action annually against the identical tenant, or the identical owner, or the identical building. I am not contending that the injunction is or ought to be perpetual against an innocent owner, present or subsequent, or as against a subsequent tenant not a party to the equity action, but I am urging that it is and ought to be perpetual, as against the guilty premises and a guilty owner, or a guilty tenant who was a party to the equity action and against which the injunctive order runs. Any other view will result in the practical destruction of the statute. Confessedly, I have not found any federal case in which the question of the duration of the injunctive order has been ruled, or in which the provisions, on this question, of section 22 of the ISTational Prohibition Act have been construed. The learned trial court took the view that the injunction was a perpetual one, as note his order. The ease of State v. Durein, 46 Kan. 695, 27 P. 148, construing the Kansas statute on the germane point and the cases of State v. Prouty, 115 Iowa, 657, 84 N. W. 670; Dickinson v. Eichorn, 78 Iowa, 710, 43 N. W. 620, 6 L. R. A. 721, and State v. District Court, 176 Iowa, 178, 157 N. W. 737, construing the Iowa statute, hold that the injunction is a permanent one. It is true, the Kansas statute, as well as the Iowa statute, specifically provided for a permanent injunction. But it has been held that the power of a court of equity to abate a nuisance by ah injunction existed before the Volstead Act was passed. Grossman v. U. S. (C. C. A.) 280 F. 683; U. S. v. Gaffney (C. C. A.) 10 F.(2d) 694; Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205. The point here vexing the court was not at all involved in the ease of Schlieder v. United States (C. C. A.) 11 F. (2d) 345, so I am not able to regard the latter ease as at all enlightening upon the point herein up for judgment.
While it is regrettable, since it creates uncertainty, that Congress neglected to set out specifically in section 22 the precise nature of the injunction contemplated, yet, as known to the profession and the hornbooks, injunctions are ordinarily of two kinds only, temporary (or, synonymously, interlocutory) and perpetual (or permanent). As seen already, even absent the National Prohibition Act, courts of equity have the power to abate a nuisance by injunction (14 R. C. L. 380); and it will hardly be contended that such an order, issuing after a hearing on the merits, is not a perpetual injunction.
Congress could, it may be, have provided a limit to the extent and duration of the injunctive order provided for in section 22, but in my opinion it clearly did not do so. For I find no such interrelation between the mandatory requirement that the court shall issue the injunctive order and the merely permissive provision that the court may, in its discretion, go further and close the guilty premises for one year against all uses, as warrants the view that the one-year limit of closure in any respect fixes a limit to the duration of the injunction, or that Congress intended it should so fix it.
Upon the second question above reserved for discussion I am of the opinion that the language of the decree herein, which followed the language of the statute, forbade a single sale of liquor, whether such sale and the circumstances of its making constituted a nuisance or not. For the sake of the argument, and perforce, perhaps, the weight of the ruled cases, it may be conceded that this single sale, without more, did not constitute a nuisance. But it makes no difference here as to this point, because the information herein charged a sale and not a nuisance, and so, if such sale had constituted a nuisance, since defendant was not so charged, he could not have been legally convicted of a nuisance.
However, as said already, the statute provides in section 22 thereof that, if the facts set up in the bill are found to be true, the court "shall order that no liquors shall be * * * sold, * * * in such * * * building * * * or any part thereof.” These facts the chancellor found, and thereupon he entered the injunctive order forbidding the 'sale, bartering, or storing of liquor in the building.
Obviously, then, a single sale was one of the things which defendant was forbidden and enjoined from doing, perforce the statute, which expressly so provides. If he made a single sale, he violated this injunction, and became potentially a contemnor. The majority opinion concedes, and I agree, that he made a sale. It is to be noted that the statute, which the injunctive order- here fairly follows, does not say that the chancellor shall order that no nuisance shall be thereafter committed in the building; it can hardly be said even to connote the forbidding of a nui*579sanee, except by implication, through continuity or multiplicity of sales, or storing, or bartering of liquor. Clearly, Congress did not say that after proof of a nuisance on the trial of the equity ease, and after the entry of the injunctive order, that contempt should thereafter consist only in the setting up again of a like nuisance in such premises. As said, nuisances after the entry of the injunctive order are scarcely implied even as forbidden acts of contempt; except as such sales, storing and so on, might incidentally and adventitiously constitute a nuisance; but what are forbidden are acts of sale, storing, making, and bartering of liquor in the padlocked premises. That is plainly what Congress said and what it meant; that is, that the making, after the injunction, of a single sale in the guilty building by a defendant who had been expressly enjoined from so doing, should constitute contempt, for which such defendant could be punished by the court in a summary way as specifically provided in section 24.
It is of course true that by other provisions (see sections 3 and 6, tit. 2 [Comp. St. §§ 10138%aa, 10138%c]) Congress denounced a sale of liquor as a crime. Such a crime can ordinarily be tried only by a jury, pursuant to the constitutional guaranty of such a trial. Whether the case of Mugler v. Kansas, supra, does not settle this question in favor of a trial by the court alone in a easg of contempt is not material. Personally, I have ho doubt that this question is settled in favor of such a trial by the above case and many others.
But the material points are, (a) that Congress has by one statute clearly said that the chancellor has power to forbid by an injunctive order a single sale, and (b) that Congress has likewise just as clearly said by another statute that the trial for the contempt involved in the act of a single sale may be had before the court without a jury and summarily. Both of these statutes are presumptively valid, and, mixing figures of speech in order to state a legal truism, they are the “lions in the path of the court.” In short, till these'stat-" utes are timely attacked as constitutionally invalid, they are binding on the courts. .One of these statutes merely defines what is forbidden by the order, to wit, a sale, inter alia, and to that extent, in connection with sections 3 and 6, may be said to define a crime as an act of contempt. This statute might, arguendo,' be challenged as constitutionally invalid, for that it enjoins the commission of a crime, in a case wherein the law itself provides a full and adequate remedy. But, as said, I think this question is settled by the Mugler Case, supra, and by the cases of Wedel v. U. S. (C. C. A.) 2 F.(2d) 462, Lewinsohn v. U. S. (C. C. A.) 278 F. 421, and U. S. v. Reisenweber (C. C. A.) 288 F. 520. Moreover, this argument would apply with equal force, if Congress had made the commission of a nuisance an act of contempt, because a nuisance is also denounced as a crime by the act.
The other statute, by providing for a trial for contempt by the court, without a jury, of an act elsewhere in the act denounced as a crime, might arguendo be said to violate the constitutional guaranty of trial in a criminal case by a jury. Passing the Mugler Case, and what it holds as to the right of a state to pass a law so providing, in virtue of its police powers (which powers in toto are now held by the United States, perforce the Eighteenth Amendment), the question is, How are the courts to avoid these two plain declarations of Congress ? However bad a statute may be, the courts are bound by it till it has been held to be constitutionally invalid. The statute last mentioned deals with the matter of the trial of the defendant and forbids the right to have a jury on such trial. It is a right, if it exists, which he should have raised in a timely way, as soon as was “proeedurally possible,” as the courts are fond of saying. If it was a statute, as it is not, which created a crime, and being constitutionally invalid, yet defendant had been convicted thereunder, he could raise it in the last sentence of his brief. But not so here in my opinion (3 C. J. 710) ; for all Congress did was to make the doing of certain things acts of contempt, as conversely, in the Clayton Act (38 Stat. 730), it permitted the lawful doing of a certain act, namely, peaceful picketing, which theretofore was an act of contempt. It was his duty to raise the question of invalidity of these sections when he first was hurt or began to be hurt by them. But he has not raised this question at all, in any objection or suggestion, or in any line, first or last, of his brief. Till he has timely raised the questions of their validity, the two statutes are binding on the courts, because the presumption is in favor of, and not against, the validity of a statute. Before this case can be reversed, I think this court must hold, either that the statute, which makes a sale (in the teeth of an injunctive order so forbidding) , an act of contempt, is unconstitutional, or it must hold that the statute, which provides for a trial for such act of contempt before the court without a jury, is unconstitutional, or put a strained construction on section 22. I see no getting away from one of these three things. We must *580either follow these two plain statutes, or we must of our own motion, absent even a suggestion anywhere by defendant, declare them unconstitutional. It is the settled rule in all courts not to decide constitutional questions till such questions arise on the record before the court. Neither upon the record here, nor in the briefs, is there any hint that either section 22 or section 24 is in the behalves mentioned, or upon any other phase, unconstitutional. I have found no case directly in point on the question whether one accused of a misdemeanor, and tried therefor without a jury, may raise this question at any time, or, not raising it at all, may have it raised for him by an appellate court. Under the rules of this court, and absent a statute so permitting, I think he could; but the general rule seems well settled that questions as to the constitutionality of statutes must be timely raised below and as soon as they arise (3 C. J. 710); otherwise courts are bound by such statutes.
In view of the eases of Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205, Eilenbecker v. Plymouth County, 134 U. S. 31, 10 S. Ct. 424, 33 L. Ed. 801, and Wedel v. United States (C. C. A.) 2 F.(2d) 463, I am convinced that section 24 is not invalid, for that it deprives the defendant of the right to a jury trial in a criminal case. I am not convinced that section 22 is invalid because arguendo it seems to enjoin the commission of a crime. Originally and initially this of course cannot be done, but, following a trial and a decree in equity, as here, and on a proceeding for contempt I think the law and the Constitution warrant such action. I repeat, that in my opinion the situation requires that we hold one or both of these sections invalid constitutionally, or that we construe section 22 as permitting an injunction for one year only, before we can reverse this ease. I am of the opinion that these sections are constitutional and that the injunction provided for is a perpetual injunction, within the conditions above limited.
Holding these views on the two decisive points involved, I am compelled to dissent.