BERS OF THE KU KLUX KLAN A DIS TURBANCE OF THE PEACE? Since the State does not contend that every masked parade under every circumstance would be a disturbance of the peace and a public nuisance, we limit our inquiry to the above question. court, parade in public in the mask of the 1. IS A PARADE IN PUBLIC BY MASKED MEMKu Klux Klan in Bourbon County, and elsewhere in Kansas. It further alleged that such a parade would seriously disturb the peace and quiet of the citizens of Kansas, would disturb the public order and tranquillity, would incite others to riot and disorder and would cause a great and irreparable injury to the lives, property and peace of the State of Kansas and the inhabitants thereof. It was further alleged that such parade, by reason of those facts would be a public nuisance and that the State was without adequate remedy at law. A temporary injunction was asked, which the State prayed might be made permanent and perpetual on final hearing, enjoining the defendants and all other persons from parading in public in the mask of the Ku Klux Klan in Kansas. Prior to the time set by the court for a hearing upon the application an agreement was reached between the attorneys for the parties, by the terms of which agreement the proposed parade was called off, and the hearing extended to permit a briefing of the legal question involved. In the meanwhile a conference of the leading Klansmen of Kansas has been called to consider the question of forbidding the public use of the mask in Kansas. Upon the outcome of that conference, further action in the case depends. The legal questions suggested by this proposed use of the injunctive remedy will, we think, be of interest to the bar in general. Those questions we will discuss as fully as time and space will permit. As indicated in the introduction to this article the State views the actions of all persons parading in public in the mask of the Klu Klux Klan as a disturbance of the peace and a common nuisance and therefore subject to injunction at the suit of the proper State officers. In determining the correctness of that view, several questions logically present themselves for consideration. They are: The present Knights of the Ku Klux Klan claim in numerous documents published by them to be the regeneration, reincarnation, and the logical and legal successor of an organization of the same name that flourished in the Southern States immediately after the Civil War. We can assume that the present organization succeeded not only to the mystic phraseology, the awe-inspiring ritual and dress, but also to the reputation of its predecessor. Since they have adopted the name, the plan of organization, the ritual, the paraphernalia, and many of the purposes of the old organization, they may be presumed to have done so intentionally and with full knowledge of the reputation and character of the old order. It is interesting to note that reputation. "KU KLUX. A secret society organized in many of the Southern States after the Civil War, whose object was apparently to prevent negroes or northerners from gaining ascendancy in the South. The organization warned, expelled, whipped or murdered persons obnoxious to it, and long over-awed the negroes, but was finally broken up by the United States military forces in 1871, after the passage of the enforcement act, which was popularly known as the Ku Klux Act."-Funk & Wagnalls' New Standard Dictionary. See also: Webster's New International Dict. Century Dictionary and Cyclopedia. New Intern. Encyclop., Vol. 13, 383. Messages and Papers of the Presidents, Vol. 7, 132-134, 139, 150. Federal Cases, 14893, 15790. 16 Statutes at Large, 140. As evidence of the admitted connection of this present order with the old order discussed above, we wish to quote these few lines from the charter of the Kansas City Klan introduced in evidence as Exhibit No. 19 in the ouster suit now pending in the Supreme Court of Kansas. wherein the date of granting of the charter is expressed in this manner: "On this the twenty-third day of the twelfth month of the year of our Lord, nineteen hundred and twenty-two, and on the desperate day of the wonderful week of the horrible month of the year of the Klan, fifty-six, and in the eighth cycle of the third reign of our reincarnation." Having given that historical background, we pass to a consideration of the question as to whether or not a masked parade by members of this organization is a disturbance or breach of the peace. In so doing we wish to first give a few general definitions. "In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence or tending to provoke or incite others to break the peace. "By peace as used in the law in this connection is meant the tranquillity enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society. It is, so to speak, that invisible sense of security which every man feels so necessary to his comfort, and for which all governments are instituted. "Nor is actual personal violence an essential element of the offense. If it were, communities might be kept in a constant state of turmoil, fear and anticipated danger, without the commission. of the offense." "The term 'breach of the peace' is generic, and includes going around in public without lawful occasion in such From the few general citations above it will be evident that any act or conduct which is either a disturbance of the public order in itself, or which induces or leads others to create such a disorder, is a breach of the peace. The same may be said of any act that alarms the public or incites fear or anticipated danger. The general rule just stated has been applied in a great many cases, and we will discuss some of them and cite others as follows: People v. Burman, 154 Mich. 150, 25 L. R. A., n. s., 251: The case of The People v. Burman is very applicable to the case at bar. In a little town in Michigan in 1908 a socialist organization decided to parade, carrying red flags. They did so, conducting themselves in an otherwise peaceful manner. The sight of the flags infuriated the publie, who started a riot. The paraders were charged with disturbing the peace by conduct inciting others to disorder. The defendants contended that they had a right to carry a red flag, and that it was not an improper flag in their minds, but merely a symbol of brotherhood and fraternity. The Court, in affirming the conviction, said: "There is no right to display a red flag in a procession when those composing the procession know that the natural and inevitable consequence will be to disturb the public peace and tranquillity in violation of a statute or ordinance." (Syl. 6.) "Upon trial of an information for carrying a red flag in a parade and thereby infuriating the public in violation of an ordinance against riot, evidence is ad missible as to how such flag was regarded by the public." (Syl. 3.) "The question here is not whether the defendants have in general a right to parade with a red flag. It is this: Have they such a right when they knew that the natural and inevitable consequence was to create riot and disorder. They knew that it would excite fears and apprehension and that by displaying it they would provoke violence and disorder. Their right to display a red flag was subordinate to the rights of the public." (Page 256.) By reading again the above quotations and substituting the word mask for the words red flag, the applicability of the citations will be evident. 17: Commonwealth v. Haines, 4 Clark (Pa.), This is an early Pennsylvania case where the defendant, an innkeeper in an Irish community, hung up on St. Patrick's day, a "paddy" or effigy of St. Patrick. This infuriated the public and a riot followed, which the defendant was charged with inciting. On account of a technical error in the indictment the defendant was discharged, but the Court said: peace. * "No man has the right to trifle with the feelings of any large class of men so as to provoke them to a breach of the The gist of the offense is its tendency to provoke a breach of the peace. It may be indiscreet in the Irish residents in the district to take notice of acts of this kind, but it is worse than indiscreet in others to provoke them to do so." In a footnote to this case it is said: "It is a curious fact that in one of the carliest riot cases on record, the overt act was the same as in the present case. In 1740 London was thrown into an uproar, on St. Patrick's day, by a collision. between two rival processions, one bearing a 'paddy' and the other a 'shelah'." Pennsylvania v. Norris, Addison, 274: This is probably the earliest American case involving the question of inciting others to disorder. The defendant was indicted in 1794 for raising a standard or pole (unfriendly to the established government), "to the great disturbance of the peace." The Court said: "Pole raising was a notorious symptom of dissatisfaction, and the exhibition of this in the only part of this country where the government was supposed to have strength must have made an impression very unfavorable to the whole. country, promoted violence in the people. here, and induced force on the part of the government." Commonwealth v. Daley, 2 Clark (Pa), 151: This case was decided in 1844. A lively political issue, which incidentally involved a religious question, was stirring the community. One of the political meetings was broken up by a disorderly mob. The parties meeting thereupon adjourned and later called another meeting in a settlement unfriendly to the proposals they were advoeating. To this second meeting they marched en masse with banners and weapons, and seemingly challenged interference. The interference duly came, and as a result a riot and murder ensued. The Court in its discussion of the case dwelt upon the legality of a lawful assembly to consider a political question, and deplored and condemned the mob that broke up the first meeting. first meeting. In considering the second meeting, however, out of which grew the riot, the Court said: "But a public meeting, otherwise legal, may from the manner, place and circumstances of its organization, become an unlawful and even a riotous assembly. * If the meeting so summoned and assembled adjourned to march in a body to a place principally inhabited. by citizens notoriously opposed to its objects, openly exhibiting arms and displaying banners containing inscriptions lacerating to the feelings of such citizens, the assembly sunk from its dignified position of a body of free men, exercising a great constitutional right, into a mere riot." For further cases treating the question of what constitutes a disturbance of the public tranquillity, see the following: Commonwealth v. Karvonen, 219 Mass. 30; 106 N. E. 556, L. R. A. 1915 B, 706. The Insurance Company v. The Tobacco Company, 116 S. W. 234. (Armed and masked night riders held to constitute mob and riot.) Tandy v. City of Hopkinsville, 160 Ky. 220; 169 S. W. 703. (Night rider case.) Deek v. Commonwealth, 178 S. W. 1129; L. R. A. 1916 B, 1117. Commonwealth v. Frishman, 126 N. E. 838; 9 A. L. R. 549. Oklahoma v. Darneal, 174 Pac. 290; 1 A. L. R. 638. Commonwealth v. Oakes, 113 Mass. 8. (Holding state need only show one person disturbed.) Cartwell v. Rochester, 8 N. Y. State 291. Burk v. Commonwealth, 19 Pa. 412. People v. Most, 171 N. Y. 423; 58 L. R. A. 509. The plaintiff feels that these cases cited above will clearly indicate that any act by any person or persons which is either violent, or menacing in itself, or which induces others to violence, or which disturbs or tends to disturb the public tranquillity or order, is a breach of the peace or a disturbance of the peace whether or not the anticipated violence occurs. As Mr. Bishop has said, "The community is disturbed whenever it is alarmed." The plaintiff claims that the community, or a considerable portion thereof, is alarmed by these masked parades. The defendants cannot avail themselves of the fact that in general the communities have thus far held their heads and have not let their alarm incite them to actual disorder. How long that portion of the community who are proscribed and antagonized by this organization may be able to restrain and control themselves is a serious question. The fact that they have in general thus far done so does not show or tend to show that they have not been disturbed. Having in this brief manner disposed of the first question, we will now pass to a consideration of the second, which is: 2. IS SUCH A PARADE A COMMON OR PUBLIC In considering this question we will necessarily have to deal somewhat with the third question, which deals with the right of a court of equity to enjoin such a nuisance. We will endeavor, however, to confine ourselves to a discussion of whether or not an act which disturbs the peace and violates and tends to violate the public order and tranquillity, is a common or public nuisance. In considering that question it would be well first to give a few general definitions: "A nuisance is anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights." Cooley on Torts, 565. 3 Blackstone Commentaries. Syl. 1, The State v. Rabinowitz, 85 Kan. 841. We can perhaps best illustrate what acts. have been held to be common or public nuisances by citing and discussing a few cases. The State, ex rel., v. Lindsay, 85 Kan. 79. This was an action brought by the Attorney General, in which an injunction was granted, enjoining the defendants from keeping a private insane asylum, one of the chief contentions being that the keeping of such asylum is a public nuisance, because the noise of the inmates and their frequent escapes caused "fear and consternation to the public, disturbing the peace and quiet thereof." The Court. in holding the injunction properly granted, said: "Where a statute prohibiting the establishment of asylums or retreats for the care of the insane or persons of unsound mind for compensation and hire, without first obtaining a license from the State Board of Charities, is continuously violated by receiving, keeping, maintaining and caring for persons of the classes named in an unlicensed asylum or retreat, thereby causing fear, consternation and disturbance of the peace in the community, an injunction will properly be granted to restrict such unlawful acts, and the Court is not restricted to a prohibition of disturbances of the peace." Statler v. Rachell, 83 Kan. 86: This was an action holding that an injunction was properly granted to enjoin the maintenance of a cancer hospital, largely by reason of the fear of those residing near it, and their consequent disturbance rendered the same a nuisance. The State v. Rabinowitz, 85 Kan. 841: This was an action wherein the sale of intoxicating liquors in the streets and alleys of the city of Leavenworth was enjoined as a public nuisance, and in the opinion, on page 847, the Court said: "A nuisance is public if it affects the community at large or if it affects a place where the public have a right to and do go, such as a park, street or alley, and which nuisance necessarily annoys, of fends or injures those who come within the scope of the influence." Commonwealth v. Cassidy, 6 Phila. 82: This was an action charging the defendant with committing a public nuisance by falsely posting circulars warning the public that a desperate kidnapper was at large and about to visit the city. The Court, in holding that such actions were a public nuisance, said (Syl. 1): "The publication of an advertisement calculated to alarm the public mind unnecessarily is a public nuisance and indictable as such." Further on in the opinion, the Court said: "To do any act which is calculated to spread terror and alarm through the community * renders the person * so offending liable to indictment in common law. That this publication, given to the public in the manner above stated, constitutes, in whatever light it might be viewed, a common nuisance, cannot, we think, be well questioned. That it is an injury to both the comfort. and health of a large number of persons in the community is self-evident, because its tendency is to fill the mind. with anxiety, fear and alarm.' Hickerson v. The United States, Fed. Case No. 18301 (1856): Town of Davis v. Davis, 21 S. E. 906 (W. Va.): State v. Nease (Ore.), 80 Pac. 897: From the above and the cases which will be cited under the next section it will be evident, we think, that an act which amounts to a breach or disturbance of the peace is a public nuisance. We will, therefore, pass to the question of the right of a court of equity to enjoin such acts, bearing in mind the objection that will be made to a court of equity enjoining a criminal act. 3. HAS A COURT OF EQUITY THE POWER TO ENJOIN AN ACT WHICH IS BOTH A PUBLIC NUISANCE AND A VIOLATION OF A CRIMINAL STATUTE? The question of the power of the court. of equity to enjoin a nuisance which is also a misdemeanor or violation of the criminal law is one that has been frequently discussed in this country. Our courts in Kansas have repeatedly and recently passed on the subject. The State v. Rabinowitz, 85 Kan. 841: "(Syl. 1.) At the common law acts done in violation of law, or which are against good morals, constitute public nuisances " "(Syl. 3.) The fact that the same acts may constitute a public offense is no |