Randolph, as President v. Leeman

*152Dissenting Opinion.

Crumpacker, J.,

dissents in which Pfaff, J., concurs. — The court has reversed the judgment herein solely because Houston did not appeal the decision of the Executive Council to the 1954 Convention and thus, by failing to exhaust its remedies under the union Constitution, forfeited its right to resort to the civil courts for relief. I cannot agree. The record discloses that all of Houston’s constitutional rights have been exhausted. The 1954 Convention, on its own motion, took up the Houston case, appointed a committee to investigate its merits and report to the Convention. On August 20, 1954, the Convention received and approved the following report of its said committee:

_ “It seems that the nub of this controversy is simply this: Does the Executive Council have authority to interpret and enforce I. T. U. laws ?
“In ruling that the Houston Proposition could not be sent to referendum, the Council did so on the ground that it did not meet requirements of the law. The local union claims it did, but that even if it didn’t, the Secretary-Treasurer or President was obligated to submit it.
“In the opinion of your committee this reasoning is ridiculous. The law requires that propositions to be submitted to referendum must meet certain specifications. It necessarily follows that some agency or person must determine if the specifications are met. Section 8, Article VIII, By-laws, unmistakably gives the Council the power to interpret and enforce our laws. No other agency is given the power anywhere in the book. The Houston Union seeks to justify its action in seeking an injunction before appealing to the convention by contending it could not appeal. The Council held that it could, but, again, the local union refused to recognize the Council’s right to interpret the law in this matter.
“It is our considered opinion that in every respect the interpretations and decisions of the Executive *153Council regarding the Houston Proposition and subsequent developments was correct and proper and we regard the attitude and actions of Houston Typographical Union as reprehensible and worthy of severest censure. . . .”

The court’s opinion relies heavily on the fact that Houston stipulated that it did not appeal its grievances to the Convention of 1954 as it had the constitutional right to do. I am unable to understand what difference that fact makes. Houston’s grievances got to the Convention as effectively as though there had been an appeal and the Convention determined them. The Constitution and By-laws of the union provide no further or additional remedy than the decision of the Convention.

It is true that this action was filed in the interim between the action of the Executive Council complained of and the convening of the 1954 Convention and was therefore prematurely brought. No plea in abatement was addressed to it but, on the contrary, the appellant appeared generally and pleaded in bar. This constituted a waiver of all matters in abatement, General Ice & Coal Co. v. George, Tr. (1938), 214 Ind. 518, 14 N. E. 2d 1002, and before trial Houston’s cause of action had matured by the action of the 1954 Convention in fully and finally adjudicating its grievances.

In addition to what I have said above the record in this case demonstrates beyond peradventure the absolute futility of a formal appeal by Houston.

Note. — Reported in 146 N. E. 2d 267.