author: Mr. Justice Black Mr. Justice Douglas,

text:
    ADDERLEY et al. v. FLORIDA.
    No. 19.
    Argued October 18, 1966.
    Decided November 14, 1966.

      Richard Yale Feder argued the cause for petitioners. With him on the brief was Tobias Simon.

      William D. Roth, Assistant Attorney General of Florida, argued the cause for respondent, pro hac vice, by special leave of Court. With him on the brief was Earl Faircloth, Attorney General.
   Mr. Justice Black

delivered the opinion of the Court.

Petitioners, Harriett Louise Adderley and 31 other, persons, were convicted by a jury in a joint trial in the County Judge’s Court of Leon County, Florida, on a charge of “trespass with a malicious and mischievous intent” upon the premises of the county jail contrary to § 821.18 of the Florida statutes set out below. Petitioners, apparently all students of the Florida A. & M. University in Tallahassee, had gone from the school to the jail about a mile away, along with many other students, to “demonstrate” at the jail their protests of arrests of other protesting students the day before, and perhaps to protest more generally against state and local policies and practices of racial segregation, including segregation of the jail. The county sheriff, legal custodian of the jail and jail grounds, tried to persuade the students to leave the jail grounds. When this did not work, he notified them that they must leave, that if they did not leave he would arrest them for trespassing, and that if they resisted he would Gharge them with that as well. Some of the students left but others, including petitioners, remained and they were arrested. On appeal the convictions were affirmed by the Florida Circuit Court and then by the Florida District Court of Appeal, 175 So. 2d 249. That being the highest state court to which they could appeal, petitioners applied to us for certiorari contending that, in view of petitioners’ purpose to protest against jail and other segregation policies, their conviction denied them “rights of free speech, assembly, petition, due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the- United States.” On. this “Question Presented” we granted certiorari. 382 U. S. 1023. Petitioners present their argument on this question in four separate points, and for convenience we deal with each of their points in the order in which they present them.

I.

Petitioners have insisted from the beginning of this case that it is controlled by and must be reversed be- - cause of our prior cases of Edwards v. South Carolina, 372 U. S. 229, and Cox v. Louisiana, 379 U. S. 536, 559. We cannot agree.

The Edwards case, like this one, did come up when a number of persons demonstrated on public property against their State’s segregation policies. They also sang hymns and danced, as did the demonstrators in this case. But here the analogies to this case end. In Edwards, the demonstrators went to the South Carolina State Capitol grounds to protest. In this case they went to the jail. Traditionally, state capitol grounds are open to the public. Jails, built for security purposes, are not. The demonstrators at the South Carolina Capitol went in through a public driveway and as they entered they were told by state officials there that they had a right as citizens to go through the State House grounds as long as they were peaceful. Here the demonstrators entered the jail grounds through a driveway used only for jail purposes and without warning to or permission from the sheriff. More importantly, South Carolina sought to prosecute its State Capitol demonstrators by charging them with the common-law crime of breach of the peace, j This Court in Edwards took pains to point out at length the indefinite, loose, and broad nature of this charge; indeed, this Court pointed out at p. 237, that the South Carolina Supreme Court had itself declared that the “breach of the peace” charge is “not susceptible of exact definition.” South Carolina’s power to prosecute, it was emphasized at p. 236, would have been different had the State proceeded under a< “precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed” such as, for example, “limiting the periods during which the State House grounds were open to the public . . . The South Carolina breach-of-the-peace statute was thus struck down as being so broad and all-embracing as to jeopardize speech, press, assembly and petition, under the constitutional doctrine enunciated in Cantwell v. Connecticut, 310 U. S. 296, 307-308, and followed in many subsequent cases. And it was on this same ground of vagueness that in Cox v. Louisiana, supra, at 551-552, the Louisiana breach-of-the-peace law used to prosecute Cox was invalidated.

The Florida trespass statute under which these petitioners were charged cannot be challenged on this ground. \ It is aimed at conduct of one limited kind, that is, for one person or persons to trespass upon the property of another with a malicious and mischievous intent. There is no lack o.f notice in this law, nothing to entrap or fool the unwary.j

Petitioners seem" to argue that the Florida trespass law is void for vagueness because it requires a trespass to be “with a malicious and mischievous intent . . . .” But these words do not broaden the scope of trespass so as to make it cover a multitude of types of conduct as does the common-law breach-of-the-peace charge. On the contrary, these words narrow the scope of the offense. The trial court charged the jury as to their meaning and petitioners have not argued that this definition, set out below, is not a reasonable and clear definition of the terms. The use of these terms- in the statute, instead of contributing to uncertainty and misunderstanding, actually makes its meaning more understandable and clear.

II.

Petitioners in this Court invoke the doctrine of abatement announced by this Court in Hamm v. City of Rock Hill, 379 U. S. 306. But that holding was that the Civil Rights Act of 1964, 78 Stat. 241, which made it unlawful for places of public accommodation to deny service to any person because of race, effected an abatement of prosecutions of persons for seeking such services that arose prior to the passage of the Act. But this case in no way involves prosecution of petitioners for seeking service in establishments covered by the Act. It involves only an alleged trespass on jail grounds — a trespass which can be prosecuted regardless of the fact that it is the means of protesting segregation of establishments covered by the Act.

III.

Petitioners next argue that “petty criminal statutes may not be used to violate minorities’ constitutional rights.” This of course is true but this abstract proposition gets us nowhere in deciding this case.

IV.

Petitioners here contend that “Petitioners’ convictions are based on a total lack of relevant evidence.” If true, this would be a denial of due process under Garner v. Louisiana, 368 U. S. 157, and Thompson v. City of Louisville, 362 U. S. 199. Both in the petition for certiorari and in the brief on the merits petitioners state that their summary of the evidence “does not conflict with the facts contained in the Circuit Court’s opinion” which was in effect affirmed by the District Court of Appeal. 175 So. 2d 249. That statement is correct and petitioners’ summary of facts, as well as that of the Circuit Court, shows an abundance of facts to support the jury’s verdict of guilty in this case.

In summary both these statements show testimony ample to prove this: Disturbed and upset by the arrest of their schoolmates the day before, a large number of Florida A. & M. students assembled on the school grounds and decided to march down to the county jail. Some apparently wanted to be put in jail too, along with the students already there. A group of around 200 marched from the school and arrived at the jail singing and clapping. They went directly to the jail-door entrance where they were met by a deputy sheriff, evidently surprised by their arrival. He asked them to move back, claiming they were blocking the entrance to the jail and fearing that they might attempt to enter the jail. They moved back part of the way, where they stood or sat, singing, clapping and dancing, on the jail driveway and on an adjacent grassy area upon the jail premises. This particular jail entrance and driveway were not normally used by the public, but by the sheriff’s department for transporting prisoners to and from the courts several blocks away and by commercial concerns for servicing the jail. Even after their partial retreat, the demonstrators continued to block vehicular passage over' this driveway up to the entrance of the jail. Someone called the sheriff who was at the moment apparently conferring with one of the state court judges about incidents connected with prior arrests for demonstrations. When the sheriff returned to the jail, he immediately inquired if all was safe inside the jail and was told it was. He then engaged in a conversation with two of the leaders. He told them that they were trespassing upon jail property and that he would give them 10 minutes to leave or he would arrest them. Neither of the leaders did anything to disperse the crowd, and one of them told the sheriff that they wanted to get arrested. A local minister talked with some of the demonstrators and told them not to enter the jail, because they could not arrest themselves, but just to remain where they were. After about 10 minutes, the sheriff, in a voice loud enough to be heard by all, told the demonstrators that he was the legal custodian of the jail and its premises, that they were trespassing on county property in violation of the law, that they should all leave forthwith or he would arrest them, and that if they attempted to resist arrest, he would charge them with that as a separate offense. Some of the group then left. Others, including all petitioners, did not leave. Some of them sat down. In a few minutes, realizing that the remaining demonstrators had no intention of leaving, the sheriff ordered his deputies to surround those remaining on jail premises and placed them, 107 demonstrators, under arrest. The sheriff unequivocally testified that he did not arrest any persons other than those who were on the jail premises. Of the three petitioners testifying, two insisted that they were arrested before they had a chance to leave, had they wanted to, and one testified that she did not intend to leave. The sheriff again explicitly testified that he did not arrest any person who was attempting to leave.

Under the foregoing testimony the jury was authorized to find that the State had proven every essential element of the crime, as it was defined by the state court. That interpretation is, of course, binding on us, leaving only the question of whether conviction of the state offense, thus defined, unconstitutionally deprives petitioners of their rights to freedom of speech, press, assembly or petition. We hold it does not. The sheriff, as jail custodian, had power, as the state courts have here held, to direct that this large crowd of people get off the grounds. There is. not a shred of evidence in this record that this power was exercised, or that its exercise was sanctioned by the lower courts, because the sheriff objected to what was being sung or said by the demonstrators or because he disagreed with the objectives of their protest. The record reveals that he objected only to their presence on that part of the jail grounds reserved for jail uses. There is no evidence at all that on any other occasion had similarly large groups of the public been permitted to gather on this portion of the jail grounds for any purpose. Nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriff’s order to remove themselves from what amounted to the curtilage of the jailhouse. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners’ argument that they had a constitutional right to stay on the property, over the jail custodian’s objections, because this “area chosen for the peaceful civil rights demonstration was not only 'reasonable’ but also particularly appropriate . . . .” Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on, Cox v. Louisiana, supra, at 554-655 and 563-564. We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose.

These judgments are Affirmed.

Mr. Justice Douglas,

with whom The Chief Justice, Mr. Justice Brennan, and Mr. Justice Fortas concur,

dissenting.

The First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, 372 U. S. 229, 235), provides that “Congress shall make no law ... abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These rights, along with religion, speech, and press, are preferred rights of the Constitution, made so by reason of that explicit guarantee and what Edmond Cahn in Confronting Injustice (1966) referred to as “The Firstness of the First Amendment.” With all respect, therefore, the Court errs in treating the case as if it were an ordinary trespass case or an ordinary picketing case.

The jailhouse, like an executive mansion, a legislative chamber, a courthouse, or the statehouse itself (Edwards v. South Carolina, supra) is one of the seats of government, whether it be the Tower of London, the Bastille, or a small county jail. And when it houses political prisoners or those who many think are unjustly held, it is an obvious center for protest. The right to petition for the redress of grievances has an ancient history and is not limited to writing a letter or .sending a telegram to a congressman; it is not confined to appearing before the local city council, or writing letters to the President or Governor or Mayor. See N. A. A. C. P. v. Button, 371 U. S. 415, 429-431. Conventional methods of petitioning may be, and often have been, shut off to large groups of our citizens. Legislators may turn deaf ears; formal complaints may be routed endlessly through a bureaucratic maze; courts may let the wheels of justice grind very slowly. Those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction and harassment as long as the assembly and petition are peaceable, as these were.

There is no question that petitioners had as their purpose a protest against the arrest of Florida A. & M. students for trying to integrate public theatres. The sheriff’s testimony indicates that he well understood the purpose of the rally. The petitioners who testified unequivocally stated that the group was protesting the arrests, and state and local policies of segregation, including segregation of the jail. This testimony was not contradicted or even questioned. The fact that no one gave a formal speech, that no elaborate handbills were distributed, and that the group was not laden with signs would seem to be immaterial. Such methods are not the sine qua non of petitioning for the redress of grievances. The group did sing “freedom” songs. And history shows that a song can be a powerful tool of protest. See Cox v. Louisiana, 379 U. S. 536, 546-548. There was no violence; no threat of violence; no attempted jail break; no storming of a prison; no plan or plot to do anything but protest. The evidence is uncontradicted that .the petitioners’ conduct did not upset the jailhouse routine; things went on as they normally would. None of the group entered the jail. Indeed, they moved back from the entrance as they were instructed. There was no shoving, no pushing, no disorder or threat of riot. It is said that some of the group blocked part of the driveway leading to the jail entrance. The chief jailer, to be sure, testified that vehicles would not have been able to use the driveway. Never did the students locate themselves so as to cause interference with persons or vehicles going to or coming from the jail. Indeed, it is undisputed that the sheriff and deputy sheriff, in separate cars, were able to drive up the driveway to the parking places near the entrance and that no one obstructed their path. Further, it is undisputed that the entrance to the jail was not blocked. And whenever the students were requested to move they did so. If there was congestion, the solution was a further request to move to lawns or parking areas, not complete ejection and arrest. The claim is made that a tradesman waited inside the jail because some of the protestants were sitting around and leaning on his truck. The only evidence supporting such a conclusion is the testimony of a deputy sheriff that the tradesman “came to the door . . . and then did not leave.” His remaining is just as consistent with a desire to satisfy his curiosity as it is with a restraint. Finally, the fact that some of the protestants may have felt their cause so just that they were willing to be arrested for making their protest outside the jail seems wholly irrelevant. A petition is nonetheless a petition, though its futility may make martyrdom attractive.

We do violence to the First Amendment when we permit this “petition for redress of grievances” to be turned into a trespass action. It does not help to analogize this problem to the problem of picketing. Picketing is a form of protest usually directed against private interests. I do not see how rules governing picketing in general are relevant to this express constitutional right to assemble and to petition for redress of grievances. In the first place the jailhouse grounds were not marked with “NO TRESPASSING!” signs, nor does respondent claim that the public was generally excluded from the grounds. Only the sheriff’s fiat transformed lawful conduct into an unlawful trespass. To say that a private owner could have done the same if the rally had taken place on private property is to speak of a different case, as an assembly and a petition for redress of grievances run to government, not to private proprietors.

The Court forgets that prior to this day our. decisions have drastically limited the application of state statutes inhibiting the right to go peacefully on public property to exercise First Amendment rights. As Mr. Justice Roberts wrote in Hague v. C. I. O., 307 U. S. 496, 515-516:

. . Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; bht it'must not, in the guise of regulation, be abridged or denied.”

Such was the case of Edwards v. South Carolina, where aggrieved people “peaceably assembled at the site of the State Government” to express their grievances to the citizens of the State as well as to the legislature. Supra, at 235. Edwards was in the tradition of Cox v. New Hampshire, 312 U. S. 569, where the public streets were said to be “immemorially associated” with “the right of assembly and the opportunities for the communication of thought and the discussion of public questions.” Id., at 574. When we allow Florida to construe her “malicious trespass” statute to bar a person from going on property knowing it is not his own and to apply that prohibition to public property, we discard Cox and Edwards. Would the case be any different if, as is common, the demonstration took place outside a building which housed both the jail and the legislative body? I think not.

There may be some public places which are so clearly committed to other purposes that their use for the airing of grievances is anomalous. There may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting may be out of keeping with the serenity of the statehouse or the quiet of the courthouse. No one, for example, would suggest that the Senate gallery is the proper place for a vociferous protest rally. And in other cases it may be necessary to adjust the right to petition for redress of grievances to the other interests inhering in the uses to which the public property is normally put. See Cox v. New Hampshire, supra; Poulos v. New Hampshire, 345 U. S. 395. But this is quite different from saying that all public places are off limits to people with grievances. See Hague v. C. I. O., supra; Cox v. New Hampshire, supra; Jamison v. Texas, 318 U. S. 413, 415-416; Edwards v. South Carolina, supra. And it is farther yet from saying that the “custodian” of the public property in his discretion can decide when public places shall be used for the communication of ideas, especially the constitutional right to assemble and petition for redress of grievances. See Hague v. C. I. O., supra; Schneider v. State, 308 U. S. 147, 163-164; Cantwell v. Connecticut, 310 U. S. 296; Largent v. Texas, 318 U. S. 418; Niemotko v. Maryland, 340 U. S. 268; Shuttlesworth v. City of Birmingham, 382 U. S. 87. For to place such discretion in any public official, be he the “custodian” of the public property or the local police commissioner (cf. Kunz v. New York, 340 U. S. 290), is to place those who assert their First Amendment rights at his mercy. It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place to air their claims and petition their government. Such power is out of step with all our decisions prior to today where we have insisted that before a First Amendment right may be curtailed under the guise of a criminal law, any evil that may be collateral to the exercise of the right, must be isolated and defined in a “narrowly drawn” statute (Cantwell v. Connecticut, supra, at 307) lest the power to control excesses of conduct be used to suppress the constitutional right itself. See Stromberg v. California, 283 U. S. 359, 369; Herndon v. Lowry, 301 U. S. 242, 258-259; Edwards v. South Carolina, supra, at 238; N. A. A. C. P. v. Button, supra, at 433.

That tragic consequence happens today when a trespass law is used to bludgeon those who peacefully exercise a First Amendment right to protest to government against one of the most grievous of all modern oppressions which some of our States are inflicting on our citizens.

What we do today disregards the admonition in De Jonge v. Oregon, 299 U. S. 353, 364-365:

“These [First Amendment] rights may be abused by using speéch or press or assembly in order to incite to violence and crime. The people through their legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”

Today a trespass law is used to penalize people for exercising a constitutional right. Tomorrow a disorderly conduct statute, a breach-of-the-peace statute, a vagrancy statute will be put to the same end. It is said that the sheriff did not make the arrests because of the views which petitioners espoused. That excuse is usually given, as we know from the many cases involving arrests of minority groups for breaches of the peace, unlawful assemblies, and parading without a permit. The charge against William Penn, who preached a nonconformist doctrine dn a street in London, was that he caused “a great concourse and tumult of people” in contempt of the King and “to the great disturbance of his peace.” 6 How. St. Tr. 951, 955. That was in 1670. In modern times, also, such arrests are usually sought to be justified by some legitimate function of government. Yet by allowing these orderly and civilized protests against injustice to be suppressed, we only increase the forces of frustration which the conditions of second-class citizenship are generating amongst us.

       “Every trespass upon the property of another, committed with a malicious and mischievous intent, the punishment of which is not specially provided for, shall be punished by imprisonment not exceeding three months, or by fine not exceeding one hundred dollars.” Fla. Stat. §821.18 (1965).

       “ 'Malicious’ means wrongful, you remember back in the original charge, the State has to prove beyond a reasonable doubt there was a malicious and mischievous intent. The word ‘malicious’ means that the wrongful act shall be done voluntarily, unlawfully and without excuse or justification. The word ‘malicious’ that is used in these affidavits does not necessarily allege nor require the State to prove that the defendant had actual malice in his mind at the time of the alleged trespass. Another way of stating the definition of ‘malicious’ is by ‘malicious’ is meant the act was done knowingly and willfully and without any legal justification. “
      “ ‘Mischievous,’ which is also required, means that the alleged trespass shall be inclined to cause petty and trivial trouble, annoyance and vexation to others in order for you to find that the alleged trespass was committed with mischievous intent.” R. 74.

       The three petitioners who testified insisted that they had not come to the jail for the purpose of being arrested. But both the sheriff and a deputy testified that they heard several of the demonstrators present at the jail loudly proclaim their desire to be arrested. Indeed, this latter version is borne out by the fact that, though assertedly protesting the prior arrests of their fellow students and the city’s segregation policies, none of the demonstrators carried any signs and upon arriving at the jail, no speeches or other verbal protests were made.

       There is no evidence that any attempt was made by law enforcement officers to interfere with this march, or, for that matter, that such officers even knew of the march or its ultimate destination.

       Although some of the petitioners testified that they had no intention of interfering with vehicular traffic to and from the jail entrance and that they noticed no vehicle trying to enter or leave the driveway, the deputy sheriff testified that it would have been impossible for automobiles to drive up to the jail entrance and that one serviceman, finished with his business in the jail, waited inside because the demonstrators were sitting around and leaning against his truck parked outside. The sheriff testified that the time the demonstrators were there, between 9:30 and 10 Monday morning, was generally a very busy time for using the jail entrance to transport weekend inmates to the courts and for tradesmen to make service calls at the jail.

       In Cox v. Louisiana, supra, at 558, the Court emphasized: “It; is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is ‘exercised with “uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination” . . . [and with] a “systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways

       “The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. . . . A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.” 379 U. S., at 554-555.
      “The conduct which is the subject of this statute — picketing and parading — is subject to regulation even though intertwined with expression’ and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.” Id., at 563.

       “Where would we really find the principal danger to civil liberty in a republic? Not in the governors as governors, not in the governed as governed, but in the governed unequipped to function as governors. The chief enemies of republican freedom are mental sloth, conformity, bigotry, superstition, credulity, monopoly in the market of ideas, and utter, benighted ignorance. Relying as it does on the consent of the governed, representative government cannot succeed unless the community receives enough information to grasp public issues and make sensible decisions. As lights which may have been enough for the past do not meet the needs of the present, so present lights will not suffice for the more extensive and complex problems of the future. Heretofore public enlightenment may have been only a manifest desideratum; today it constitutes an imperative necessity. The First Amendment, says Justice Black, ‘reflects the faith that a good society is not static but advancing, and that the fullest possible interchange of ideas and beliefs is essential to attainment of this goal.’ [From Feldman v. United States, 322 U. S. 487, 501 [dissenting opinion).]” Cahn, supra, at 102.

       The historical antecedents of the right to petition for the redress of grievances run deep, and strike to the heart of the democratic philosophy. C. 61 of the Magna Carta provided:
      “[T]hat if we or our justiciar, or our bailiffs, or any of our servants shall have done wrong in an}' way toward any one, or shall have transgressed any of the articles of peace or security; and the wrong shall have been shown to four barons of the aforesaid twenty-five barons, let those four barons come to us or to our justiciar, if we are out of the kingdom, laying before us the transgression, and let them ask that we cause that transgression to be corrected without delay.” Sources of Our Liberties 21 (Perry ed. 1959).
      The representatives of the people vigorously exercised the right in order to gain the initiative in legislation and a voice in their government. See Pollard, The Evolution of Parliament 329-331 (1964). By 1669 the House of Commons had resolved that “it is an inherent right of every commoner of England to prepare and present Petitions to the house of commons in case of grievance,” and “That no court whatsoever hath power to judge or censure any Petition presented . . . .” 4 Pari. Hist. Eng. 432-433 (1669). The Bill of Rights of 1689 provided “That it is the right of the subjects to petition the king and all commitments and prosecutions for such petitioning are illegal.” Adams & Stephens, Select Documents of English Constitutional History 464. The right to petition for a redress of grievances was early asserted in the Colonies. The Stamp Act Congress of 1765 declared “That it is the right of the British subjects in these colonies, to petition the king or either house of parliament.” Sources of Our Liberties 271 (Perry ed. 1959). The Declaration and Resolves of the First Continental Congress, adopted October 14, 1774, declared that Americans “have a right peaceably to assemble, consider their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.” Id., at 288. The Declaration of Independence assigned as one of the reasons for the break from England the fact that “Our repeated Petitions have been answered only by repeated injury.” The constitutions of four of the original States specifically guaranteed the right. Mass. Const., Art. 19 (1780); Pa. Const., Art. IX, § 20 (1790); N. H. Const., Art. 32 (1784); N. C. Const., Art. 18 (1776).

       In 1932 over 28,000 veterans demanding a bonus marched on Washington, D. C., paraded the streets, and camped mostly in parks and other public lands in the District, Virginia, and Maryland only to be routed by the Army. See Waters, B. E. F. (1933).

       See, e. g., De Jonge v. Oregon, 299 U. S. 353; Feiner v. New York, 340 U. S. 315; Niemotko v. Maryland, 340 U. S. 268; Edwards v. South Carolina, 372 U. S. 229; Cox v. Louisiana, 379 U. S. 536; Shuttlesworth v. City of Birmingham, 382 U. S. 87. The same is true of other measures which inhibit First Amendment rights. See, e. g., N. A. A. C. P. v. Alabama, 357 U. S. 449; Bates v. City of Little Rock, 361 U. S. 516; Shelton v. Tucker, 364 U. S. 479; N. A. A. C. P. v. Button, 371 U. S. 415. If the invalidity of regulations and official conduct curtailing First Amendment rights turned on an unequivocal showing that the measure was intended to inhibit the rights, protection would be sorely lacking. It is not the intent or purpose of the measure but its effect on First Amendment rights which is crucial.


source: Caselaw Access Project

author: Mr. Justice Clark Mr. Justice Black,

license: Public Domain

text:
    ILLINOIS CENTRAL RAILROAD CO. et al. v. NORFOLK & WESTERN RAILWAY CO. et al.
    No. 15.
    Argued October 11, 1966.
    Decided November 14, 1966.

      William J. O’Brien, Jr., argued the cause for appellants in Nos. 15 and 17. With him on the brief in No. 15 were Robert H. Bierma and Edmund A. Schroer. With him on the brief in No. 17 was Charles B. Myers.

      Richard A. Posner argued the cause for the United States et al. in No. 20. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro and Robert W. Ginnane.

      Theodore E. Desch argued the cause for appellees in all cases. With him on the brief were Martin L. Cassell, Don McDevitt, John L. Bordes, Reuben L. Hedlund and Robert A. Deane.

      Together with No. 17, Calumet Harbor Terminals, Inc., et al. v. Norfolk & Western Railway Co. et al. and No. 20, United States et al. v. Norfolk & Western Railway Co. et al., also on appeal from the same court.

   Mr. Justice Clark

delivered the opinion of the Court.

This is an appeal from the judgment of a three-judge District Court, 241 F. Supp. 974, setting aside orders of the Interstate Commerce Commission, 307 I. C. C. 493, 312 I. C. C. 277, 317 I. C. C. 502, which granted the applications of seven railroads to provide additional rail service to the Lake Calumet Harbor Port near the southern limits of Chicago, Illinois. The service was to be provided through the construction of a single line of track into the Chicago Regional Port District for the joint use of the seven railroads. At present the port is served directly by only one railroad, appellee Chicago, Rock Island and Pacific Railroad Company (Rock Island). Appellee New York, Chicago and St. Louis Railroad Company (Nickel Plate), has facilities on the east side of Lake Calumet which has been reserved for future commercial development, but at present its facilities do not reach the port. The court, with one judge dissenting, rejected as not having “ample support” in the record, the findings of the Commission that the public convenience and necessity required the additional service applied for by the seven roads. It further found, unanimously, that the requirements of due process were violated by the Commission in its refusal to give Rock Island and Nickel Plate a hearing before approving a nonexclusive agreement, subsequently executed between the applicant roads and the Port District, covering the use of the latter’s facilities. The court ordered a new hearing on all the issues, one judge concluding that such hearing should be limited to the subsequently executed nonexclusive use agreement. We noted probable jurisdiction, 382 U. S. 913, and reverse the judgment.

I.

Background of Lake Calumet Harbor Port.

Lake Calumet Harbor Port is one of seven facilities within the Port of Chicago available for the handling of water-borne freight. It is a shallow lake approximately two miles in length and covers approximately 1,250 acres. It is accessible by water from Lake Michigan via the Calumet River into the heart of the Chicago switching district, a distance of some six miles.

As early as 1880 one of the Pullman companies constructed trackage that first brought rail service to Lake Calumet. Pullman reserved some 300 to 500 acres for the. development of a harbor and later donated some acreage to the United States for the development of a turning basin. Comprehensive plans for dredging Lake Calumet harbor and the filling of submerged lands were prepared in 1916 by an engineer for the City of Chicago. In 1917 Pullman waived riparian rights to some four miles of Lake Calumet shoreline to the City of Chicago and in 1935 gave additional land to the United States for the purpose of widening the Calumet River.

In 1947 the Illinois Central, an appellant here, attempted to enter the port area. Pullman and two of the seven appellants here, New York Central and the Belt Railway Company of Chicago, opposed the application which was addressed to the Illinois Commerce Commission. In 1949, during the pendency of the proceeding, Rock Island acquired the common stock and certain industrial property of Pullman for $2,200,000. Rock Island then entered the proceedings in opposition to Illinois Central. The application of the latter was approved by the Illinois Commerce Commission but the Circuit Court of Cook County rejected it and the Supreme Court of Illinois affirmed in 1953. Chicago, R. I. & P. R. Co. v. Illinois Commerce Commission ex rel. Illinois Central R. Co., 414 Ill. 134, 111 N. E. 2d 136.

The Interstate Commerce Commission in approving the acquisition of Pullman by Rock Island — over the objections of Illinois Central and the Belt Railway Company, each of which also sought to acquire Pullman or a portion of its trackage on the lake — imposed certain conditions on Rock Island designed to guarantee fair practices, assure nondiscriminatory handling of the traffic of other railroads to and from the lake and guarantee the mutuality of traffic and operating relationships theretofore existing between Pullman and the other roads. Rock Island, however, continued to be the only line providing direct service to the port.

The Chicago Regional Port District was created as a municipal corporation by the State of Illinois in 1951. Its purpose.was the development of Lake Calumet into a major deep water port facility for both domestic and import-export traffic via the St. Lawrence Seaway. In 1954 the Port District declared by resolution that the public’s, as well as the port’s, interest required that its trackage be accessible to as many railroads as possible. In 1955 the Port District acquired the lake and some adjoining property from the City of Chicago and began dredging the lake and constructing port facilities at its southern end; it also built 14 miles of railroad yard “hold” tracks in the port, docks, two 6,500,000-bushel grain elevators, three transit sheds occupying 300,000 square feet of space, a back-up warehouse with 200,000 square feet of space, and streets. These facilities cost $24,000,000 and were paid for by the sale of Port District revenue bonds. By contract with the Port District the Rock Island operates over the trackage of the Port District and also serves the Calumet Harbor Terminals, Inc., a private harbor facility. No other railroads reach the port on their own tracks. The Nickel Plate is the nearest rail facility. As previously noted, it has trackage on the east side of the lake which has been reserved for future development by the Port District. Any railroad wishing to service the port must use the facilities of Rock Island.

II.

The Applications Before the Commission.

On October -22, 1956, the appellants Illinois Central Railroad Company and the Pennsylvania Railroad Company, requested authority from the Commission under the provisions of 49 U. S. C. § 1 (18) to construct 1.431 miles of new track that would connect their lines to the present trackage of an affiliate of Illinois Central that passes near Lake Calumet’s southwestern shore. Similar applications were subsequently filed by the Chicago South Shore and South Bend Railroad, the Belt Railway Company of Chicago, the Michigan Central Railroad Company, the New York Central Railroad Company and the Indiana Harbor Belt Railroad Company. All of the applicants sought to operate directly to and from the Lake Calumet port, rather than use the facilities of the Rock Island. The latter, as well as the Nickel Plate, requested and was given leave to intervene as were other parties. The Rock Island and Nickel Plate were the only objectors, the remaining intervenors all supporting the applications.

The original applications of the seven railroads did not specifically request authority from the Commission to operate over the Port District’s tracks. It appears that appellants were under the impression that formal Commission authority was not necessary because of the fact that Rock Island was currently operating without it. Nevertheless, the applications covered the entire plan of operations proposed by appellants, including activity within the Port District as well as an unexecuted agreement covering the leasing of the Port District facilities which was attached to the application as an exhibit. This lease was before the Hearing Examiner during the 12-day joint hearing he conducted and was the subject of testimony and consideration. The appellants advised, and the Hearing Examiner concluded, that the appellants sought approval to operate within the Port District, as well as authority for the track extension. Accordingly, the Hearing Examiner recommended to the Commission that the entire project of the appellants be approved.

On October 5, 1959, the Commission adopted the Hearing Examiner's recommendations but ruled that the applicants should file supplemental applications covering their proposed operations within the Port District, as provided in the proposed lease with the District. The Commission discussed the lease and indicated that it was satisfactory. It did, however, feel that the exclusive right of operation clause should be eliminated. The Commission also ruled that Rock Island’s service to Calumet Harbor Terminals, Inc., was not to be disrupted and that every industry located at Lake Calumet Harbor was to have direct rail service, not only from the applicants but the Rock Island and Nickel Plate, if they so elected.

In April 1960, the appellants, pursuant to the Commission’s requirement, filed supplemental applications for specific authority to operate within the Port District. The proposed lease covered by these applications eliminated the exclusionary provisions to which the Commission had objected. Despite the request of Rock Island and Nickel Plate for a hearing on the new lease the Commission found that the “technical deficiency” existing in appellants' original applications had been corrected by the filing of their supplemental applications; that the record of the previous hearing was adequate to support approval of the entire proposal of the appellants; and the applications, as supplemented, were approved.

In June 1961, however, the appellants and the Port District found it necessary to amend their operating agreement and appellants filed a second supplemental application asking for approval of the same. This agreement modified the one previously approved by the Commission. The old agreement had provided for a 5% annual rental for the use of the Port District’s rail facilities based upon the valuation of the latter, but not to exceed $2 per car, loaded or empty, including locomotives. The new agreement provided for a flat charge of $2 for each loaded freight car; it also specifically eliminated industry-owned tracks within the Port District from the agreement; and provided that it did not affect the right of Rock Island to operate in the Port District nor grant any exclusive privilege to the appellants. The Commission, after once again denying ap-pellees’ request for a hearing, approved this final agreement on November 26, 1962. The Commission found that the changes merely clarified the rights and responsibilities of the parties. As to the rentals it found that “rentals generally may be considered reasonable where, as here, the facts of record disclose that nonaifiliated parties, after bargaining at arm’s length, have entered into an agreement under which increased service will be offered to the public, all parties to the agreement will benefit financially, and the interveners’ ability to. continue to serve the public will not be impaired.”

III.

Proceedings in the District Court.

The Rock Island and Nickel Plate then filed this suit seeking to enjoin the Commission’s orders and the three-judge District Court vacated the orders on the grounds we have stated.

The court found that it was faced with two basic problems: (1) whether there was “substantial evidence” to support the order of the Commission and (2) whether the refusal of the Commission to have a hearing on the lease agreement between the applicants and the Port District denied Rock Island and Nickel Plate due process of law.

With respect to the first problem the court found “substantial support” for some of the “important findings” of the Commission. However, it found that the record did not “offer ample support” for certain of its conclusions. These conclusions appeared to have been drawn by the Commission from the prior findings which the court had found to have “substantial support” in the record.

On the supplemental application for authority to operate within the Port District the court held there was insufficient evidence to support the order of approval; that the rental under the final contract was materially different from the provisions of the original plan and bound the Rock Island and Nickel Plate to operate under the same condition without affording them the right of a hearing. By a divided court it ordered a complete rehearing on all issues. We cannot agree with either the findings of the District Court or with its disposition of the case.

IV.

Applicable Standard on Review.

At the outset the Commission and the appellant railroads contend that the court did not apply the correct standards in reviewing the Commission’s action. As we have noted, the court did reject certain “conclusions” of the Commission, as above indicated, with respect to the public convenience and necessity for additional rail service to Lake Calumet port on the ground that they did not have “ample support” in the record. The test on judicial review is, of course, whether the action of the Commission is supported by “substantial evidence” on the record viewed as a whole, 5 U. S. C. § 1009 (e) (5). Substantial evidence is “enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300 (1939). A careful reading of the opinion leads us-to conclude that the court was applying the test of substantiality. Indeed, at four separate places in the opinion it uses the term “substantial evidence” as being the necessary requirement. As unfortunate as it is that the “ample support” language crept into the decision, we do not believe that the court was creating a “novel formulation” but rather inadvertently used the “ample support” terminology merely to meet the same language in the dissent referring to the conclusions of the Commission.

We have concluded that the court erred in setting aside the conclusions of the Commission. The Act authorizes the issuance of certificates such as the ones sought here when the Commission finds that the future public convenience and necessity will require additional railroad service. 49 U. S. C. § 1 (18). This Court has repeatedly held that if a railroad, voluntarily proposing the extension of its lines, can show that its proposal “either presently or in the reasonably near future will be self-sustaining, or so nearly so as not unduly to burden interstate commerce, the Commission may issue a certificate authorizing the proposed line,” Interstate Commerce Commission v. Oregon-Wash. R. & Nav. Co., 288 U. S. 14, 37 (1933). The Commission, however, “must be convinced that the proposed venture will not drain the railroad’s resources and disable it from performing those duties of public service under which it then rested, with consequent detriment to the public in the matter of service and rates.” Ibid. Also see Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U. S. 266, 277 (1926); Chesapeake & O. R. Co. v. United States, 283 U. S. 35, 42 (1931). Rock Island and Nickel Plate contend that the “evidence [of appellants] adduced before the Commission was so totally devoid of factual possibility as to be no evidence at all.” As we read it, the evidence as to the future possibilities of the port was somewhat conflicting. The Commission, in keeping with its duty, resolved this conflict. Indeed, the findings of the Commission, which were upheld by the District Court, completely refute the Rock Island and Nickel Plate claims. Among the findings approved by the court are the following: The port was “the major deepwater port facility of the port of Chicago,” with “unparalleled access” to barge, rail, lake steamer and motor transportation and “complete access to ocean transportation” in the immediate future, with 71,490,510 tons of water-borne traffic in 1955 and with “material increases” in tonnages predicted for the future from among an estimated 600 to 900 vessels coming to the Chicago port each season, that “will necessitate a substantially broadened railroad service into and out of the Lake Calumet port”; appellants’ combined yard capacity was 61,601 cars, more than 12 times that presently available at the port; appellants’ routing would be “more direct,” entail less handling, expedite shipments and be less expensive than the present operation of Rock Island; and, finally, it was “imperative . . . that at the very beginning of this new era of development a plan and system for handling the transportation needs of the port be established which will assure the type of service that is expected and will provide for steady progress and expansion.” We believe that these findings, in the light of others not overturned by the District Court, are sufficient to sustain the Commission’s action in issuing the certificates.

Moreover, we believe that the District Court erred in striking down the conclusions of the Commission. These conclusions included: Consideration of the whole record warranted the finding that the applications should be granted; granting them would result in greater rail competition, better service, greater car supply and lower rates for the industries served by the port; appellants would be “on a par” with the Rock Island in solicitation of grain traffic, and by having control of their cars- they could return empties in a fast shuttle service to country elevators without interchange with Rock Island; the time has come when additional freight service is required for the future development of the Port District; better service can be given through elimination of delays, by single-line hauls or more direct hauls; a single trunkline railroad service would be detrimental and a hindrance to the development of the harbor, and, although the port is served by some 100 common carrier trucklines, the Rock Island is the only railroad presently serving the port; the future convenience and necessity must be given “a higher value” than the present convenience and necessity; the proposed construction either presently or in the reasonably near future is necessary to meet a public need and will be reasonably profitable; and, finally, considering the expansion program at the port and the increased rail traffic to be made available the Commission is “of the opinion that the additional service ... is warranted.” As we have said, these conclusions were largely based upon previous Commission findings which the District Court approved. The Commission’s function is to draw such reasonable conclusions from its findings as in its discretion are appropriate. As we said in Consolo v. Federal Maritime Comm’n, 383 U. S. 607, 620 (1966), “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” It is not for the court to strike down conclusions that are reasonably drawn from the evidence and findings in the case. Its duty is to determine whether the evidence supporting the Commission’s findings is substantial, Universal Camera Corp. v. Labor Board, 340 U. S. 474 (1951). Having found that there was substantial support in the record for the Commission’s findings as to the port’s future potential and the necessity of providing competitive rail service at the outset of the port’s development, it was not the District Court’s function to substitute its own conclusions for those which the Commission had fairly drawn from such findings. Its agreement with the controlling subsidiary findings required the District Court to sustain the Commission’s conclusions.

The court also erred, we believe, in ordering a new hearing on the issues. It found that the Commission’s order issuing a certificate of public convenience and necessity to operate within the Port District was not supported by sufficient evidence and violated due process in that a hearing was not afforded the appellees thereon.

As we view the original applications of the appellants they proposed “to extend their operations to serve the Lake Calumet Harbor District near Chicago, in Cook County, Illinois •. . . future industries, elevators, warehouses, docks and piers in the Calumet Harbor Port area.” The prayer was that “your Commission issue a certificate of public convenience and necessity authorizing the construction and operation for which authority is herein sought.” The proceeding came on for a hearing before the Hearing Examiner on September 30,1957, and counsel for the Rock Island stated for the record that his understanding was “the issue in this case is that all applications are for the purpose, of handling import and export business only to and from the Port District Harbor of Chicago (Emphasis supplied.) And counsel for the appellants stated that the plan was “to handle interstate business to and from the area over which the port has jurisdiction. We have no such limitation at all as to import or export trade.” Likewise, the “Return to Questionnaire” executed by appellants stated: “The line proposed to be constructed and operated will receive material revenue from freight traffic to be handled to and from industries, elevators, warehouses, docks, and piers presently operating in the Calumet Harbor Port area, in addition to those facilities to be constructed with the further development of the area.” To make it crystal clear paragraph 10 of the same answer to the questionnaire stated:

“The Lake Calumet Port District, which the proposed line will serve is currently served by the Chicago, Rock Island and Pacific Railroad Company by virtue of its acquisition of the Pullman Railroad Company, through purchase of capital stock, and lease by the former of the railroad property of the latter approved and authorized by the Commission in Finance Docket No. 16252, Pullman Railroad Company Control, decided November 17, 1949.”

The other applications had similar allegations and the other appellants’ questionnaire returns contained like statements. Moreover, the answers filed on May 16, 1957, by Rock Island and Pullman to the applications, addressed themselves solely to the proposition that “applicant’s extension of its line of railroad and operations through trackage rights to serve territory [the Port District] heretofore served exclusively and adequately by petitioners cannot be supported by public convenience and necessity, could mean only a duplication of rail service, and would create unsound and uneconomic conditions in transportation.”

As we read the record before the Hearing Examiner the case was tried on the theory that the applications included the proposed operations within the Port District. During the presentation of appellants’ evidence objection was made to the introduction of the proposed lease between appellants and the Port District on the ground that it was beyond the scope of the application. The Hearing Examiner overruled the objection. The testimony of virtually all of the appellants’ witnesses was directed to some phase of the operations of the Port District. It should also be noted that the appellees sought to rebut this testimony in voluminous detail. For example, 40 pages of the record detail the testimony of Mr. R. C. Davidson, a witness for Rock Island. His testimony is devoted to Rock Island’s operation in the United States with specific reference to the Port District. It compares Rock Island’s operation in the Port District with that proposed by the appellants and answers in detail the statistics of the appellants as to charges, rates, switching problems, etc., involved in operations within the Port District. Page after page of prepared statistics on the costs, profits, etc., of the proposed operation were included in the testimony, together with forecasts as to the impact of the same, if permitted, on Rock Island’s operations. Another witness for Rock Island, Professor Marvin L. Fair, testified for some 15 pages on the potential of the Port District. His research was in great depth and included comparisons with other Great Lakes ports; estimated traffic of the Port District, including iron ore, grain, and general cargo; physical conditions of navigation at the port; the effect of tolls; the capacity of the Welland Canal (in the St. Lawrence Seaway) and its impact on the port; the efficiency of the port facilities; established movement of exports and imports; the effect of political, military, and economic conditions at home and abroad and the adequacy of Rock Island’s service.

The record establishes beyond a doubt that the appellants were in fact seeking Commission approval of the entire project. Their offering of the unexecuted, proposed contract into evidence is one of many indications of this fact. The Hearing Examiner specifically noted, at the time the contract was received in evidence, that its approval by the Commission was necessary in order for the appellants to serve the Port District as they proposed. It would, indeed, have been a futile act for the appellants to seek and attain approval to extend their lines to the Port District but not be able to enter it!

It is true that appellees objected to the introduction of the proposed agreement because they felt, and rightly so, that the application which the appellants had submitted was not technically broad enough for the authority they sought. The Hearing Examiner overruled them and they were obliged to — and did — offer their evidence on the matter. When the question came before the Commission for decision, it ruled that the applications were technically deficient and permitted the parties to correct the same through the filing of supplemental applications. At no time did the Commission find that the proposal to operate within the Port District had not been adequately explored and examined. Rather, a careful reading of the Commission’s entire opinion leads us to the opposite conclusion. At every stage of the proceedings before the Hearing Examiner and also before the Commission, operations of the appellants within the Port District were considered an integral part of the overall plan which they submitted.

The ruling of the Commission that the supplemental applications should be considered in “conjunction with the original application,” did not, in our view, deprive appellees of due process of law. When appellees requested a full hearing on the supplemental applications the grounds they alleged were that they were adequately serving the port; that they were prepared to spend further sums of money in the construction of facilities to serve it; that they were entitled to retain the traffic of the Port District; that there was no adequate reason for extension of the railroad lines of appellants into territory heretofore served exclusively by appellees; and that the extension of the railroad lines of appellants was not justified by public convenience and necessity. As the Commission itself found, “Examination of the record discloses that these are the same arguments and contentions that were set forth in protestants’ original briefs, exceptions to the examiner's proposed report, in their petitions for reconsideration, and in their oral arguments." Illinois Central R. Co. Construction and Trackage, 312 I. C. C. 277, 280.

The changes in the proposed lease agreement which the Commission approved without a further hearing involved the removal of the “exclusive right to operate within the Port” clause, which that document had given the appellants, and the formula for determining the annual rental to be charged by the Port District. As to the former, it can hardly be maintained that this worked a hardship or detriment upon the appellees. The removal of the clause, in fact, made certain that appel-lees were not precluded from continuing their present operations. As to the rental clause, it will be remembered that the original proposed agreement provided for 5% annual rental based on the value of the land and tracks, but not to exceed $2 per car. This was changed in the first supplemental application to a charge of not to exceed $2 per revenue car or locomotive. The final contract merely provided for a charge of $2 for each revenue car, which was much more favorable to the appellants than either of the former clauses. Moreover, the final charge compared favorably to other per-car rates previously approved by the Commission. In the light of these considerations, as well as the fact that appellees were invited and refused to sit in on the negotiation of the contract; had ample opportunity and did present their evidence as to the reasonableness of the charge for the use of Port District property; were, and are, in nowise bound by the contract; and, finally, in view of the insignificance of the changes in the final agreement compared with the former ones, we are led to conclude that appel-lees were not entitled to another hearing.

Appellees also insist that a new hearing be held so that evidence of “present conditions” could be presented to the Commission rather than “speculation.” It is true that this case has been pending for 10 years but this, rather than being a reason for holding additional hearings, operates to the contrary. We have concluded that the orders of the Commission were proper under the circumstances. We have found. substantial support for its actions. Accordingly, it is our view that this matter be concluded.

The judgment is therefore reversed and the case is remanded to the District Court with directions to sustain the Commission’s orders. It is s0 ordered.

Mr. Justice Black,

dissenting.

The District Court set aside an order of the Interstate Commerce Commission on the ground that the evidence failed to support its findings of fact. I dissent from the Court’s reversal of that holding. In Universal Camera Corp. v. Labor Board, 340 U. S. 474, 488, it was said that “Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” In the case here the District Court found that it could not conscientiously support the Commission’s findings and I would affirm its judgment, adhering to the principles so firmly announced in Universal Camera, supra.

       Illinois Central Railroad Company; Pennsylvania Railroad Company; Chicago South Shore and South Bend Railroad; Belt Railway Company of Chicago; the New York Central Railroad Company; and the Indiana Harbor Belt Railroad Company. The Michigan Central Railroad Company sought additional trackage approval but had not signed a proposed lease with the Port District as the other appellants had.

       The Nickel Plate has merged into the Norfolk and Western Railway Company since this proceeding began.

       Others included: the Secretary of Agriculture, the Port District, the Chicago Board of Trade, the Chicago Association of Commerce and Industry, and two private companies operating on the lake, Calumet Harbor Terminals, Inc., and North Pier Terminal Company.

       317 I. C. C. 502, 505.

        Norfolk & Western R. Co. v. United States, 241 F. Supp. 974, 977.

       The testimony was that rail traffic to and from the port in 1960 would be 27,000 carloads which could easily increase to 76,500 carloads in 1962, 115,000 carloads in 1968 and anywhere from 250,000 to 350,000 carloads a year when both sides of the lake are completed. There was also much testimony as to grain shipments. The seven States of Indiana, Illinois, Iowa, Missouri, Kansas, Nebraska and Colorado in 1956 produced 43% of all the wheat and 51% of the corn grown in the United States. The existing disparity in rates will divert much grain from Atlantic and Gulf ports for movement via Chicago and the St. Lawrence Seaway. Service to the port by one railroad does not appear adequate since the railroads serving the midwest grain-producing States terminate in Chicago and have extensive switching and classification yards which could be utilized.

       241 F. Supp. 974, 979.

       Application of Illinois Central, Pennsylvania, and Chicago South Shore and South Bend railroads filed October 19, 1956, with the Interstate Commerce Commission.

       Return of Illinois Central, Pennsylvania, and the Chicago South Shore and South Bend, R. 17.


author: Mr. Justice White Mr. Justice Fortas,

text:
    CICHOS v. INDIANA.
    No. 45.
    Argued October 19, 1966.
    Decided November 14, 1966.

      John P. Price argued the cause for petitioner. With him on the brief were Cleon H. Foust and John B. McF addin.

      Douglas B. McFadden, Deputy Attorney General of Indiana, argued the cause for respondent, pro hac vice, by special leave of Court. With him on the brief was John J. Dillon, Attorney General.
   Mr. Justice White

delivered the opinion of the Court.

Following petitioner’s trial in the Circuit Court for Parke County, Indiana, under a two-count affidavit charging him with reckless homicide and involuntary manslaughter, the jury returned a verdict reciting only that he was guilty of reckless homicide. Petitioner was sentenced to one to five years in prison and was fined $500 plus court costs. He appealed, and the Supreme Court of Indiana granted a new trial. Petitioner was retried on both counts, and the second jury returned the same verdict as the first. He was again sentenced to one to five years in prison but was fined only $100 plus court costs. The Supreme Court of Indiana affirmed this reckless homicide conviction, rejecting petitioner’s contention that his retrial on the involuntary manslaughter count had subjected him to double jeopardy in violation of the Indiana and United States Constitutions.

Asserting that the first jury’s silence with respect to the manslaughter charge amounted to an acquittal under Indiana law and that his retrial on that charge placed him twice in jeopardy, compare Green v. United States, 355 U. S. 184, petitioner, in his petition for certiorari which we granted, presented a single question: Is the Fifth Amendment’s prohibition against placing an accused in double jeopardy applicable to state court prosecutions under the Due Process Clause of the Fourteenth Amendment?

Because of the following considerations, which have more clearly emerged after full briefing and oral argument, we do not reach the issue posed by the petitioner and dismiss the writ as improvidently granted.

1. The Indiana statutes define involuntary manslaughter as the killing of “any human being ... involuntarily in the commission of some unlawful act.” Ind. Stat. Ann. § 10-3405 (1956). The statutory penalty is two to 21 years’ imprisonment. The crime of reckless homicide, created in 1939 as part of Indiana’s comprehensive trafile code, is committed by anyone “who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person.” Ind. Stat. Ann. § 47-2001 (a) (1965). For this crime, a fine and a prison term of from one to five years are authorized.

Recognizing the inherent overlap between these two crimes in cases of vehicular homicide, the Indiana Legislature has provided that

“[A] final judgment of conviction of one [1] of them shall be a bar to a prosecution for the other; or if they are joined in separate counts of the same indictment or affidavit, and if there is a conviction for both offenses, a penalty shall be imposed for one [1] offense only.” Ind. Stat. Ann. § 47-2002 (1965).

The Indiana courts have also recognized that reckless homicide “is a form of involuntary manslaughter,” Rogers v. State, 227 Ind. 709, 715, 88 N. E. 2d 755, 758. Proof of reckless homicide necessarily establishes an unlawful killing that amounts to involuntary manslaughter. Both crimes require proof of the same elements to sustain a conviction under Indiana law. See Rogers v. State, supra; State v. Beckman, 219 Ind. 176, 37 N. E. 2d 531. Thus, the effect of charging the two crimes in a single affidavit, as occurred in this case, was to give the jury the discretion to set the range of petitioner’s sentence at two to 21 years by convicting him of involuntary manslaughter or at one to five years by convicting him of reckless homicide. As the Indiana Supreme Court in the case before us explained, “[t]he offenses here involved are statutorily treated more as one offense with different penalties rather than viewing reckless homicide as an included offense in involuntary manslaughter.” - Ind. -, -, 208 N. E. 2d 685, 688.

2. Petitioner does not assert that he should not have been tried again for reckless homicide. His only claim is that he should not have been tried again for involuntary manslaughter as well as reckless homicide because the jury’s silence at his first trial with respect to involuntary manslaughter was legally an acquittal on this charge.

However, the Indiana Supreme Court squarely rejected this interpretation of the first jury’s verdict. The court distinguished a long line of Indiana cases which have held that a jury’s silence must be deemed an acquittal. Because of the identity of the elements of these two crimes, and because the Indiana Supreme Court knew of “the trial court practice of telling the jury to return a verdict on only one of the charges in view of the limitation on penalty,” id., at -, 208 N. E. 2d, at 687, the court concluded that “a verdict of guilty of reckless homicide does not logically exclude the possibility of such a verdict on the charge of involuntary manslaughter.” Id., at -, 208 N. E. 2d, at 688-689. Therefore, “[T]he logic of the principle which states silence is equal to an acquittal is perhaps made inappropriate to charges of these offenses, related to the same unlawful transaction .... Rather than treat the silence of the jury in the involuntary manslaughter count in this case as an acquittal, the better result would seem to be to hold that the reckless homicide verdict encompassed the elements of involuntary manslaughter, and that appellant was simply given the lesser penalty.” Id., at -, 208 N. E. 2d, at 687.

In the light of the Indiana statutory scheme and the rulings of the Indiana Supreme Court in this case, we cannot accept petitioner’s assertions that the first jury acquitted him of the charge of involuntary manslaughter and that the second trial therefore placed him twice in jeopardy. Consequently, we do not reach or decide the question tendered by the petition for certiorari, and the writ is dismissed as improvidently granted.

It is so ordered.

While concurring in the Court’s opinion, Mr. Justice Blac adheres to his dissent in Bartkus v. Illinois, 359 U. S. 121, 150, to the effect that the Fourteenth Amendment makes the double jeopardy provision of the Fifth Amendment applicable to the States.

Mr. Justice Fortas,

with whom The Chief Justice and Mr. Justice Douglas join,

dissenting.

If this were a federal case, it would, in my view, be covered by Green v. United States, 355 U. S. 184 (1957). In Green, the defendant was not acquitted of the first degree murder charge at the first trial. Just as in the present case, the jury did not return a verdict on that count, but convicted Green on the lesser charges of arson and second degree murder. But this Court held that Green could not be retried on the first degree murder charge. It clearly and unmistakably held that whether Green was “acquitted” of the greater offense was of no consequence. He had been exposed to jeopardy. See 355 U. S., at 188, 190-191. So, in the present case, it is of no consequence whether the silence of the jury on the involuntary manslaughter count amounted to acquittal. Petitioner was put in jeopardy on that count and cannot again be tried on that charge.

The only, difference between Green and the present case — except as to the jurisdictions — is that in Green, on the second trial, the defendant was convicted on the aggravated count. In the present case, petitioner was again convicted on the less serious charge. I cannot see that this can justify a difference in result. Petitioner should not have been retried on an affidavit including the more serious charge, which was not involved in the appeal. That charge was dead — beyond resuscitation. Its wrongful inclusion in the affidavit was materially harmful to petitioner. First, it exposed him to the hazards of prosecution and conviction for the more onerous offense. Second, it again gave the prosecution the advantage of offering the jury a choice — a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844 (C. A. 2d Cir. 1965), cert. denied, 383 U. S. 913 (1966). And beyond the question of injury to the petitioner in this particular case is the fact that the procedure which Indiana used chills the right of appeal. It “has the necessary effect of unlawfully burdening and penalizing the exercise of the right to seek review of a criminal conviction.” United States v. Ewell, 383 U. S. 116, 130 (1966) (dissenting opinion). Defendants in Indiana in this type of case are admonished that if they appeal from a conviction on the less onerous charge they do so at the peril that on the next trial they may be tried, and possibly convicted, on the more serious count.

This is a state case. But the Fourteenth Amendment’s requirement of due process, in my view, certainly and clearly includes a prohibition of this kind of heads-you-lose, tails-you-lose trial and appellate process. See the dissent of Mr. Justice Black in Bartkus v. Illinois, 359 U. S. 121, 150 (1959); Brock v. North Carolina, 344 U. S. 424, 429, 440 (1953) (dissenting opinions of Vinson, C. J., and Douglas, J.).

The Second Circuit’s views are in accordance with the position stated herein. See United States ex rel. Hetenyi v. Wilkins, supra.

I would reverse and remand.

       “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amend. 5. “No person shall be put in jeopardy twice for the same offense.” Ind. Const., Art. I, § 14.

       Indiana adopted the common-law crime of involuntary manslaughter early in its history. The crime has traditionally been applied by the Indiana courts to cases of vehicular accidents resulting in death. E. g., Smith v. State, 186 Ind. 252, 115 N. E. 943 (auto accident); State v. Dorsey, 118 Ind. 167, 20 N. E. 777 (railroad accident).

       This doctrine developed in response to contentions that silence on any count, required the setting aside of the entire verdict under the common-law rule that a defendant has an absolute right to a jury verdict on all charges for which he is tried. See Weinzorpflin v. State, 7 Blackf. 186 (Ind. 1844). Since a reckless homicide conviction is a statutory bar to further prosecution for involuntary manslaughter, § 47-2002, supra, petitioner cannot be adversely affected by the jury’s silence with respect to the involuntary manslaughter count.

       The judge’s charge to the jury in the first trial is not a part of the record in this case.


author: Mr. Justice White

text:
    UNITED GAS PIPE LINE CO. v. FEDERAL POWER COMMISSION et al.
    No. 49.
    Argued October 19-20, 1966.
    Decided November 14, 1966.

      Vernon W. Woods argued the cause and filed briefs for petitioner.

      Peter H. Schiff argued the cause for respondent-Federal Power Commission. With him on the brief were Solicitor General Marshall, Ralph S. Spritzer, Richard A. Posner, Richard A. Solomon and Howard E. Wahrenbrock.

      Bruce R. Merrill argued the cause and filed a brief for respondent Continental Oil Co.
   Mr. Justice White

delivered the opinion of the Court.

United Gas Pipe Line Company and Continental Oil Company executed a contract effective January 31, 1953, providing for the sale by Continental and the purchase by United of gas produced from the Johnson Bayou Field in the State of Louisiana, at prices stated in the contract. The contract was to run for 10 years and from year to year thereafter unless terminated by either party on 90 days’ notice. To effectuate delivery to United’s nearby Mud Lake transmission line for transportation of the gas into the Beaumont, Texas, area, Continental constructed several thousand feet of pipeline, separators and storage tanks. United, for its part, constructed a short length of pipeline, a separator, a meter station and valves. United sought, was granted and accepted a certificate of public convenience and necessity authorizing the continued transportation of gas from the Johnson Bayou Field and the construction and operation of the facilities necessary therefor. 14 F. P. C. 582. Likewise, Continental was issued a certificate authorizing the sale of gas to United under the terms of the contract. 15 F. P. C. 1650.

In October 1962 Continental elected to terminate the contract at the end of the primary term. Negotiations for a new contract were fruitless. Continental, after refusing United’s offer to continue purchasing on a day-today basis at the old contract rate, filed a rate increase with the Commission asking for an effective date of January 31, 1963. The Commission accepted the filing over United’s protest. United, after advance notice to Continental, then ceased purchasing gas from the Johnson Bayou Field on January 31, 1963, and has since refused to purchase gas from that source. Following a petition by Continental, an order to show cause issued by the Commission to United and a full hearing, the Commission found that United, by ceasing to take gas from the Johnson Bayou Field, had abandoned its facilities used for this purpose as well as the service rendered by these facilities, contrary to the provisions of § 7 (b) of the Natural Gas Act which forbid such abandonment without the consent of the Commission being first obtained. Accordingly, the Commission ordered United to “renew operation of its Johnson Bayou Field facilities used to purchase gas from Continental” and directed that the purchases by United were to be at Continental’s new rate and in volumes consistent with the terms of the contract previously in force. 31 F. P. C. 1079, 1086. The Court of Appeals upheld the Commission’s order, 350 F. 2d 689, and we granted certiorari, 383 U. S. 924, because the case involved an important question concerning the Commission’s jurisdiction under the Natural Gas Act. We affirm.

We agree with the Commission and the Court of Appeals that United’s refusal to continue receiving gas from the Johnson Bayou Field constituted an abandonment of “facilities” and a “service” to which § 7 (b) applies. That section places conditions on the abandonment of facilities or of any service rendered thereby. The facilities covered by the section are those “subject to the jurisdiction of the Commission,” the further identification of which requires resort to other sections of the Act. Section 1 (b) declares that the provisions of the Act are to apply to: (1) the transportation of natural gas in interstate commerce, (2) the sale in interstate commerce of natural gas for resale for ultimate public consumption and (3) natural gas companies engaged in such transportation or sale. Under § 7 (c) no natural gas company is permitted to engage in the transportation or sale of natural gas, or to undertake the construction or extension of facilities therefor without a certificate of public convenience and necessity authorizing such acts or operations. Thus the “facilities subject to the jurisdiction of the Commission” which are reached by the abandonment provisions of § 7 (b) are those facilities required for the interstate transportation of natural gas and for the interstate sale of gas for resale to the ultimate consumer. Conversely, it would seem beyond argument that the proscription of abandoning “any service” rendered by those facilities would include both transportation and sale, the twin functions which subject the facilities to the provisions of the Act.

We are convinced that United's Johnson Bayou Field facilities were subject to the jurisdiction of the Commission. They were constructed solely for the purpose of the taking and interstate transportation of Johnson Bayou gas. They could not, therefore, be abandoned without the consent of the Commission and we do not understand United's position in this Court to be otherwise. United, however, insists that there has not in fact been a § 7 (b) “abandonment.” It is true that the Johnson Bayou Field facilities were neither removed nor disconnected. Their use could have been resumed at any time had United so desired. But the physical alteration of facilities is not a sine qua non restricting the Commission’s jurisdiction under § 7 (b). Here United ceased taking and transporting gas from the Johnson Bayou Field on January 31, 1963, has not taken that gas or used its facilities constructed for that purpose since that time and has no intention of doing so as long as Continental’s present rates continue in effect. United, the Commission found, had by its own action rendered its facilities “operationally dormant for a period of indefinite duration.” 31 F. P. C. 1079, 1083. In addition, the Commission found that its interest went beyond the physical alteration of facilities. “We have a regulatory responsibility to assure that gas once dedicated to the interstate market will continue to be available to that market so long as the public interest demands . . . .” 31 F. P. C. 1079, 1082. As the instant proceeding unmistakably revealed, the responsibility of the Commission could not adequately be met if it were powerless to assure that facilities “certificated to transport this gas,” ibid., continued to operate. To hold United’s conduct an abandonment within the meaning of § 7 (b) is a reasonable interpretation of the Act and we shall not disturb it.

The corollary conclusion, inescapably presented on the face of the Act itself, is that the consent of the Commission is necessary before United can cease taking and transporting Johnson Bayou gas, since this is a service United rendered through the facilities it constructed for that very purpose. United, however, contends that the words “any service” in § 7 (b) include only the sale of natural gas, not the taking and transportation of gas from any particular field. In its view it is free at any time to abandon the interstate transportation of gas from the Johnson Bayou Field, and to decide for itself wholly apart from the Commission what gas it will continue to transport interstate. But nothing in the Act, its legislative history or in our cases has been called to our attention which persuasively supports this narrow view or which would justify recognizing the sale of gas as a service but not the preceding transportation without which there would be no sale at all.

The Act gives the Commission jurisdiction over interstate transportation of natural gas as a separate and distinct matter, whether the transportation is for hire or for sale and whether the sale is for consumption or resale. FPC v. East Ohio Gas Co., 338 U. S. 464; FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1; Panhandle Eastern Pipe Line Co. v. FPC, 359 F. 2d 675. Here, of course, the transportation is not for hire but for sale, some for consumption and some for resale. What is more, in Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137, 149-150, the Court clearly recognized that the term “service” is not confined to sales but extends to the “movement of gas in interstate' commerce” and that one who engages in either the sale or the transportation of gas is performing a service within the meaning of both §§ 7 (e) and 7 (b). It could not be more clear that United here abandoned a “service,” the taking of Johnson Bayou Field gas and its transportation in interstate commerce. The statutory necessity of prior Commission approval, with its underlying findings, cannot be escaped.

Even so, United argues that the Act gives the Commission no authority over the purchase of natural gas, and that the Commission therefore exceeded its jurisdiction in ordering United to continue purchasing gas from Continental in amounts specified in an expired contract and at prices set unilaterally by Continental. It is true that the Act does not in so many words grant the same express authority over purchases to the Commission that it does over sales. Neither is there a blanket exemption of Commission jurisdiction over the purchase of gas, and there is express authority over transportation as well as sale. Under § 16, the Commission has the power “to perform any and all acts, and to . . . issue . . . such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this Act.” 52 Stat. 830, 15 U. S. C. § 717o. Where it is necessary to regulate the purchase of gas in some respects to carry out its expressly granted authority over transportation and sale, the Commission must have the power to do so. In the case before us, there has been a § 7 (b) abandonment of facilities or services without Commission consent. It is therefore quite proper for the Commission to order the facilities reactivated and the abandoned service restored, even though the resumption by United of the transportation of gas from the Johnson Bayou Field will entail the purchase of gas from Continental at the legally established price. Undoubtedly, the continued purchase of gas has been ordered but only as an incident to regulating transportation or sale. This is no more than the Act authorizes and no more than United undertook to do when it sought and received certification for the service it sought to perform.

After United had begun to purchase gas from the Johnson Bayou Field in 1953 and to transport it to markets in the State of Texas, United sought a certificate of public convenience and necessity authorizing the construction and use of the facilities it had built and the continued transportation of the Johnson Bayou gas. United then asserted that the public convenience and necessity required the issuance of such a certificate. Both the construction and operation of the facilities and the transportation of gas by means thereof were found by the Commission to be required by the public convenience and necessity. United was found “able and willing ... to perform the service . . .” for which it had volunteered. A certificate was accordingly issued and formally accepted by United. United now wishes to abandon the express service it agreed to perform — the continued transportation of Johnson Bayou gas — without a § 7 (b) finding by the Commission “that the present or future public convenience or necessity permit[s] such abandonment.” This is precisely what the Act forbids.

United claims that it does not need the Johnson Bayou gas to serve its customers and that the forced purchase of gas at prices set by Continental and approved by the Commission without regard to the prices at which United under contract or competition is bound to sell the gas deprives it of property without due process of law. In our view, these claims are premature. We do not hold that it would be inappropriate for the Commission to permit abandonment in this case if it is asked to do so and the necessary findings are made. We hold only that United has abandoned facilities and service without the consent of the Commission and that it must reactivate those facilities and restore the service until and unless the statutory consent is obtained. If United now resorts to the Commission, it will have every opportunity to present its economic and constitutional grounds for abandonment.

For the reasons herein stated, the judgment of the Court of Appeals is affirmed.

It is so ordered.

       United unsuccessfully petitioned for rehearing of the Commission's order approving the rate increase, 29 F. P. C. 525, but did not seek judicial review of the order.

       Section 7 (b) of the Act provides that “No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present 'or future public convenience or necessity permit such abandonment.” 52 Stat. 824, 15 U. S. C. §717f (b).

       The text of the section provides: “The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” 52 Stat. 821, 15 U. S. C. §717 (b).

       The text of the section, in relevant part, provides that “No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations . . . .” Added by the Act of February 7, 1942, 56 Stat. S3, 15 TJ. S. C. § 7,17f (c).

       What we have said, of course, does not imply that the Commission has the. power to compel initial purchases of gas. We reach only the question of the Commission’s power under § 7 (b) to order reactivation of abandoned facilities and service.

       United’s application for the certificate, docketed September 20, 1954, appears in FPC Docket No. G-2818, United Gas Pipe Line Company.

       The Commission’s complete order appears in Docket G-2818, supra, n. 6; an abbreviated version appears in 14 F. P. C. 582. (Emphasis added.)


author: Per Curiam.

text:
    O’CONNOR v. OHIO.
    No. 477.
    Decided November 14, 1966.

      James W. Cowell for petitioner.

      Harry Friberg for respondent.
   Per Curiam.

This is the second time petitioner has come before this Court with the claim that the prosecutor’s comment upon his failure to testify during his trial for larceny violated the constitutional right to remain silent. In O’Connor v. Ohio, 382 U. S. 286, we considered this contention when we granted certiorari, vacated the conviction and remanded the case to the Supreme Court of Ohio for further proceedings in light of our decision in Griffin v. California, 380 U. S. 609. Following remand, the Ohio court by a closely divided vote upheld petitioner’s conviction solely on the ground that he failed to object to the proscribed comment at his trial and during his first appeal in the state courts. That failure was held to preclude the Ohio appellate courts from considering the claim that petitioner’s federal constitutional rights had been infringed.

The State does not contest the fact that the prosecutor’s remarks violated the constitutional rule announced in Griffin. Moreover, it is clear the prospective application of that rule, announced in Tehan v. Shott, 382 U. S. 406, does not prevent petitioner from relying on Griffin, since his conviction was not final when the decision in Griffin was rendered. Indeed, in Tehan we cited our remand of petitioner’s case as evidence that Griffin applied to all convictions which had not become final on the date of the Griffin judgment. 382 U. S., at 409, n. 3. Thus, the only issue now before us is the permissibility of invoking the Ohio procedural rule to defeat petitioner’s meritorious federal claim.

We hold that in these circumstances the failure to object in the state courts cannot bar the petitioner from asserting this federal right. Recognition of the States’ reliance on former decisions of this Court which Griffin overruled was one of the principal grounds for the prospective application of the rule of that case. See Tehan v. Shott, 382 U. S. 406, 417. Defendants can no more be charged with anticipating the Griffin decision than can the States. Petitioner had exhausted his appeals in the Ohio courts and was seeking direct review here when Griffin was handed down. Thus, his failure to object to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court.

We therefore grant the petition for certiorari and reverse the judgment of the Supreme Court of Ohio.

It is so ordered.


text:
    UNITED STATES et al. v. SASKATCHEWAN MINERALS.
    No. 525.
    Decided November 14, 1966.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane, Fritz R. Kahn and Betty Jo Christian for the United States et al. in No. 625.

      Charles W. Burkett, W. Harney Wilson, Arthur A. Arsham and Willard P. Scott for appellants in No. 526.

      Wayne W. Wright for appellee in both cases.

      Together with No. 526, Great Northern Railway Co. et al. v. Saskatchewan Minerals, also on appeal from the same court.

   Per Curiam.

These appeals are from an amended judgment of a three-judge district court, 253 F. Supp. 504, which set aside an order of the Interstate Commerce Commission dismissing appellee’s complaint, 325 I. C. C. 621, and remanded the case to the Commission “for further proceedings with instructions to grant relief” to the appellee “in accordance with the opinion heretofore entered by this court on December 8, 1965, and the Supplemental Memorandum Decision entered by this Court on March 3, 1966.” Accepting the District Court’s decision to set aside the Commission’s order on the merits, appellants challenge that portion of the judgment which instructs the Commission to grant relief to the appellee and precludes the Commission from reopening the proceedings for the receipt of additional evidence relevant to the question whether the rates challenged by the appellee are in fact unreasonably preferential in violation of § 3 (1) of the Interstate Commerce Act, 49 U. S. C. § 3 (1). We agree with the appellants that, under the circumstances present here, this restriction is an improper limitation on the Commission’s duty to reconsider the entire case. Arrow Transp. Co. v. Cincinnati, N. O. & T. P. R. Co., 379 U. S. 642. Accordingly, the. judgment of the District Court is vacated and the cases are remanded to the District Court with instructions to enter an order remanding the case to the Commission for further proceedings consistent with the District Court’s opinion of December 8, 1965.

It is so ordered.


text:
    BOARD OF SATANTA JOINT RURAL HIGH SCHOOL, DISTRICT NO. 2, et al. v. HASKELL COUNTY PLANNING BOARD et al.
    No. 560.
    Decided November 14, 1966.

      Dale M. Stucky for appellants.

      Robert C. Londerholm, Attorney General of Kansas, and J. Richard Foth, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    LITTLE v. RHAY, PENITENTIARY SUPERINTENDENT.
    No. 669,
    Misc.
    Decided November 14, 1966.

      Francis Conklin for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers submitted as a petition' for a writ of certiorari, certiorari is denied.