Anderson Federation of Teachers, Local 519 v. School City of Anderson, 868

• Citation: 252 Ind. 558,254 N.E.2d 329
• Decision Date: 19 January 1970
• Docket Number: No. 868,868
• Parties: , 73 L.R.R.M. (BNA) 2601 ANDERSON FEDERATION OF TEACHERS, LOCAL 519, Appellant, v. SCHOOL CITY OF ANDERSON, A. George Harrison, C. DeVar Litten, Evelyn J. Byrum, Fred L. Matthews, John L. Childes, As Members of the Board of Education of theSchool City of Anderson, Madison County, Indiana, State of Indiana, Appellees. S 121.
• Court: Supreme Court of Indiana

Page 329

254 N.E.2d 329

252 Ind. 558, 73 L.R.R.M. (BNA) 2601

ANDERSON FEDERATION OF TEACHERS, LOCAL 519, Appellant, v. SCHOOL CITY OF ANDERSON, A. George Harrison, C. DeVar

Litten, Evelyn J. Byrum, Fred L. Matthews, John L. Childes,

As Members of the Board of Education of theSchool City of

Anderson, Madison County, Indiana, State of Indiana, Appellees.

No. 868 S 121.

Supreme Court of Indiana.

Jan. 19, 1970.

Henry P. Schrenker, Anderson, Frank E. Spencer, Indianapolis, for appellant.

William Byer, Robert W. Miller, Anderson, for appellees.

Edward J. Fillenwarth, Edward J. Fillenwarth, Jr., Indianapolis, for petitioners amicus curiae.

ON PETITION FOR REHEARING AND ON PETITION

FOR LEAVE TO FILE BRIEF AMICUS CURIAE

GIVAN, Judge.

Appellant's petition for rehearing in this case was filed on October 21, 1969. Thereafter, on the 20th day of November, 1969, Loran W. Robbins and James R. Nolan, who are members of and President and Secretary-Treasurer, respectively, of Teamsters Local Union No. 135 in Indianapolis, filed their petition to file brief as amicus curiae. This was the first time that said petitioners or anyone similarly situated have sought to intervene as amicus curiae in this appeal. In their petition they seek to raise a new question that the judgment and order against the Anderson Federation of Teachers, Local 519, is a nullity for the reason that said Local is not a separate entity, citing the case of Local Union No. 135, International Brotherhood of Teamsters, etc. et al. v. Merchandise Warehouse Company (1956), 127 Ind.App. 57, 63, 64, 132 N.E.2d 715, 718.

Appellees have filed objections to the petition for leave to file brief amicus curiae in which they point out that the established law in Indiana is that a question or issue may not be presented to the Court for the first time on a petition for rehearing, citing Browne v. Blood (1964), 245 Ind. 447 196 N.E.2d 745, rehearing denied 199 N.E.2d 712; Hardin v. State (1964), 246 Ind. 23, 201 N.E.2d 333, rehearing denied 202 N.E.2d 164.

It is thus argued that parties seeking to intervene as amicus curiae should not be permitted to so raise a new question for the reason that they are required to accept the case as they find it at the time of their petition to intervene. City of Indianapolis v. Wynn (1959), 239 Ind. 567, 157 N.E.2d 828, rehearing denied 239 Ind. 567, 159 N.E.2d 572; Indiana State Board of Medical Registration v. Seulean (1942), 219 Ind. 321, 328, 37 N.E.2d 935.

With this we agree, and for that reason we deny the petition to file brief amicus curiae at this time. However, because the question raised casts reflection upon eminent counsel handling the appeal for the Anderson Federation of Teachers, Local 519, in that it suggests they failed to raise a pertinent point in the case, we feel compelled to point out that the case of Local Union No. 135 v. Merchandise Warehouse Company, supra, cited by those seeking to intervene, after recognizing the general principle which is urged by the intervenors, states as follows:

'An examination of the whole record, however, indicates that this is a suit against a class of individuals too numberous to be brought into court and that the appellants James Burrello, William Schlott, Harry Belmore and Gene San Soucie were sued as the representatives of that class known as Teamsters Local No. 135. The judgment, by its express terms runs against all the members of Teamsters Local No. 135, separately and severally, and against Gene San Soucie, President, James Burrello, William Schlott and Harry Belmore as their agents and representatives. To that extent the judgment is valid.'

In the case at bar the restraining order was issued against the 'Anderson Federation of Teachers Local 519, and every member thereof, and all persons agreeing, combining, and conspiring with them, their representatives, officers, associates, confederates, employees, agents, representatives and servants, and all persons whomsoever known or unknown to whom notice thereof shall come, * * *.' The judgment of contempt was rendered against the Local and fine levied in the sum of $500.00 per day starting with May 3, 1968, and for each school day '* * * said Anderson Federation of Teachers Local 519 and all of its members continued to strike, picket or in any manner interfere with plaintiff's conduct with the public schools of the City of Anderson.' It is thus apparent that even by the authority of the very case cited by those seeking to intervene that the judgment rendered in this case is valid for the reason that the restraining order and the judgment include the individual members of the Union.

The fact that counsel for appellant did not raise this question themselves is certainly no reflection on their ability. It is commendable they did not raise a question which was so obviously not involved in the case.

Question is raised by the petition for rehearing that the decision of the Court is erroneous in holding that government employees may not engage in a strike for any purpose in that there is no statute enacted by the General Assembly declaring such to be the public policy of the State of...