Blackburn v. Koehler, 135

• Citation: 140 N.E.2d 763,127 Ind.App. 397
• Decision Date: 12 March 1957
• Docket Number: AFL-CI,A,No. 18844,H,No. 135,I,135,18844
• Parties: Darrell BLACKBURN, William Blackburn, Edward Blackburn, Lawrence Thomas, Karl Schwenzer, Localnternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,ll Business Representatives and Agents of Said Localowsoever Named and Howsoever Doing Business, Appellants, v. Harold W. KOEHLER, d/b/a Koehler's Wholesale Restaurant Supply, Appellee.
• Court: Indiana Appellate Court

Page 763

140 N.E.2d 763

127 Ind.App. 397

Darrell BLACKBURN, William Blackburn, Edward Blackburn Lawrence Thomas, Karl Schwenzer, Local No. 135 International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America, AFL-CIO, All Business Representatives and Agents of Said Local No. 135, Howsoever Named and Howsoever Doing Business, Appellants, v. Harold W. KOEHLER, d/b/a Koehler's Wholesale Restaurant Supply, Appellee.

No. 18844.

Appellate Court of Indiana, In Banc.

March 12, 1957.

Rehearing Denied April 5, 1957.

Transfer Denied May 8, 1957.

Edward J. Fillenwarth, Indianapolis, for appellants.

John D. Raikos, Indianapolis, for appellee.

COOPER, Judge.

This is an appeal from the granting of a temporary injunction enjoining the appellants from picketing the premises of the appellee.

The problem presented invokes the application of Acts of Indiana General Assembly, Acts 1933, ch. 12, p. 28, § 1 et seq., § 40-501, et seq., Burns' 1952 Replacement.

The title of the above Act reads as follows: 'An Act defining and limiting the jurisdiction of the courts of this state in the issuance of restraining orders and injunctions in cases involving or growing out of labor disputes * * *' (Our emphasis).

Chapter 12, p. 28, § 1, Acts 1933, the same being § 40-501, Burns' 1950 Replacement, provides:

'Issuance of injunctions restricted.--No court of the state of Indiana, as herein defined, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this act (§§ 40-501-40-514) * * *'

Chapter 12, p. 28, § 9 of the Act, the same being § 40-509, Burns' 1952 Replacement, provides:

'Injunction--Finding of facts--Limitation on prohibition.--No restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of finding of facts made and filed by the court in the records of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in said findings of fact made and filed by the court as provided herein.' (Our emphasis.)

One of the questions which we have to consider is whether such statute makes it mandatory for the trial court to make and file the findings of fact referred to in such statute prior to the granting of an injunction. This necessarily involves the construction of the word, 'shall', as used in the above sections. As a general rule of statutory interpretation, the presumption is that the word, 'shall', as used in any given law, is to be construed in an imperative sense, rather than directory, and this presumption will control, unless it appears clearly from the context, or from the manifest purpose of the Act as a whole that the Legislature intended in the particular instance that a different construction should be given to the word. State ex rel. De Armond v. Superior Court of Madison County, 1940, 216 Ind. 641, 25 N.E.2d 642; State ex rel. Simpson v. Meeker, 1914, 182 Ind. 240, 105 N.E. 906, and authorities cited.

'To ascertain the legislative intent we must consider the entire statute and the object sought to be attained thereby. The intention of the lawmaker constitutes the law. State ex rel. Rogers v. Davis, 1952, 230 Ind. 479, 482, 104 N.E.2d 382; Haynes Automobile Co. v. City of Kokomo, 1917, 186 Ind. 9, 12, 114 N.E. 758; Thorn v. Silver, 1909, 174 Ind. 504, 515, 89 N.E. 943, 92 N.E. 161; City of Lebanon v. Dale, 1943, 113 Ind.App. 173, 46 N.E.2d 269.' Wedmore v. State, 1954, 233 Ind. 545, 122 N.E.2d 1, 4.

The purpose of the Act is expressed in clear and unambiguous terms. The Act forbids the issuance of any injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions thereof, as heretofore stated.

This court, in an opinion by Draper, J., in the case of Spickelmier v. Chambers, 1943, 113 Ind.App. 470, 47 N.E.2d 189, 190, inconstruing the statute involved, stated:

'The Act declares the public policy of this state, defines a labor dispute and forbids the issuance of any injunction in a case involving or growing out of a labor dispute except in strict conformity with the provisions thereof.'

The record in this case shows that on the 14th day of February, 1956, the trial court issued a restraining order, without notice, and fixed the 17th day of February, 1956, as the date the court would hear the application for the temporary injunction requested by the petitioner.

On February 14, 1956, the court made and entered his temporary restraining order without notice, which said restraining order in material and pertinent substance is as follows:

'* * * and this proceeding being submitted to the court on said verified complaint on such application for a restraining order, and the court being duly advised in the premises finds for the plaintiff and finds that the plaintiff is entitled to a restraining order as prayed for therein. (Our emphasis.)

'* * * It Is Therefore Ordered, Adjudged and Decreed by the Court that the defendants, and each of them be, and they are...