Petition for a Writ of Certiorari — New York Central Railroad v. Public Service Commission of Indiana

Alm mm

Supreme Court of the ited States

Ocrosze Tem, 1966

s

Tue New York CenTRaL Baszioup Counsiie et al, ap

| Petitioners, el

* . Pyupric SRvice Comission OF Iprawa, et al.,

(PUTRI SUPREME COUNT OF INDIANA 3 |

°, THE SUPREME COURT ‘OF acseacees nye .

(eres ne

‘f, Dante, E. Jounson .- ;

. ras 810 Fletcher Trust Bui

: - + <4. Indianapolis, Indiana 46204

, Pavut A. Porter

Ceo * Denwis G. Lyons

pees N st HE Se 1229 Nineteenth Street, N.W.

: : Washington, D. C. 20036

ee: Attorneys for Petitioners

ve) Of Counsel: |

Baxer & Dantets : kere | :

Indianapolis; Indiana Tene ate

\ Arnot & Porter i

Washington, D. C..

:Suly, 1966 ee Pee

0

INDEX.

.Page..

Opinions Below ... ae . Siicilnableele, 52MM

Jurisdiction 2

| P Question ‘Presented, Pes dsocone ? 3

Constitutional Provision Involved .. ate nia

Statement _ | : en | 3

: -Reasons for ee the Writ . 8

- ‘Conelusion | ——— z A 15

APPENDICES:

Appendix A —Revised Opinion and Judgment of

Indiana ’ Supreme siti 7". 19, ,

1966 ) 7 ee

"Appendix A-1—Order hismatiening Revised Opin. ‘os

ion and Judgment, May 19, ‘1966 .... 15a

__Appendix B-—Original' Opinion and.J udgment of

Sagumaaatel :; -Indiana Supreme Court, March 8,

ree. 3 | 1966 .- 2 17a :

“Appendix C —Petition for. ficheaving Filed a Ap-

ty pellees [Petitioners in this Court]

in the Supreme Court of Indiana;

‘March 25, 1966 . : . 29a

CITATIONS

CASES: . :

ei "Bibb v. Navajo Freight Lines, Inc., 359 U.S. 620 (1959) re :

. Board of Comm’rs v. -Lucas, 93 U. S. 108 (1876) ......3, 9,14

a

s.

\

\ Lie

: oA

j j Oi ig

4 Bay Si oe

Be ae TMi ek Index Continued .

aye Brinkerhoft-Faris Trust & Savings Co. v. “Hil, 2g US.

673 (1930) -s,....... Cem, &

"Brotherhood of ‘Loupnistive Masipects v. Chicago, R: I:

& P.R. Co., 382 U.S: 423 (1966) pass ---4, 5, 6, 10, 12, 13, 14° = -

Cole v. Arkansas, 333 U. S. 196 (1988)... isF a e 9

; : &

Dewhitenent of Insurapeo-v- Motors: Insurance Corp. a ee

aoe 236 Ind. 1, 138 N.E.2d 157 (1956). “13.

___ --DuBean v. Smither and. Mayton, Inc., 203.1 : 2d 395 —

mB ee aie WR: Dison igs We

| ie ° Great Northern R: Co. Vv. Suiiburst ‘Oil & ¢ Refining Co. ie

‘+ 987 U.S. 858(1932) saree ‘RRR sad

Greene v. McElroy, 360 U.S. 414 (1959) ‘i eres SL

‘lowa:1es Moines Nat'l Bank v.: "Bennett, 284 vU. 8. 239 aa

oh ne oa

ca Att Doud, 354 US, 457 (1987) a marta = a

NANCP v. Alabama, 357 USS. 449. (1958) ee aes

‘ Nashville, C. & St. L. Ry. Vv. Walters, 294°U.S. 405 1

(1935) i pairs 10

Pavaroff v. Pavaroff, 130 P22d 212 (Cal. App. 1942) .. 1.

Pettigrew v. National: Accounts dh cu Ine., 213 N. E.

2d 778 (iil. 1966) : : 8

Saunders v: Shaw, 244 U.S. 317 (1917) 22... . 8

Southern Pacific Co. v. —— 325 U.S. 761 ay 11

op ; i

’ ‘The Ottawa, 3- Wall. 268 (4866). .2...-s<2:. aay

Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N. E. i

808 (1988) | "18

Weis v. Cox, 205 Ind. 43, 185 N.E. 631 (1983) ince ll

: se a

. mish

Le

Index Continued = itt

3 tei eter tc a at Eno Bee

Srarures ab ConstrTuTIONAL Provisions: .

8 8. Constitution, Article I, Section 8 8, Clause 3 ........4, 12

U. 8. Constitutio’, Amendment XIV, olin 1 ....3, 4, 6, 7,

8,9, 10, 11,12. -

Public Law 88.108, TT Stat. 132 (1963) ...... 4,13

98 ‘U.S.C. § 1257(3) ...... | RU 3

Indiana Acts 1937; ¢. 58, §§ 1-13, Indiana Stat. § 59-

«1826 to 55-1338 | ; ...3, 5, 6, 10

ee

‘ MisceLLANEous: ee

~ Note, 74 Harv. L. Rev. 1375 (1961) ........ 2 9

“Stern &. Gressman, Supreme Court Practice (3d ed.

mK. since ?

| a | In’ THE i ee rae

“Supreme Court af the Bnited States «

| Ooronei TERM, 1966 Soe

We iericnernicin

| Tue New sae CENTRAL Rar.Roap Comrax, et -al.,

_. Petitioners,

Vee, |

Peso SERVICE Connnissiox OF Inpiava, et al. of

6

Respondents.

PETITION FOR A WRIT ¢ OF CERTIORARI TO

THE SUPREME COURT ‘OF INDIANA

2

Petitioners, The New York Central ‘Railroad. Gomainey: or

The Pennsylvania Railroad Company, The Baltimore and

| _ Ohio Railroad Company, The New York; Chicago and St..

Louis Railroad - Company, Monon Railroad, Erie-Lacka-

wanna Railroad Company, Elgin, J oliet and Kastern Rail- —

road Company, Louisville and Nashville Railroad Com-' —

pany, Chicago, Milwaukee, St. Paul and Pacific Railroad

_ Company, Grand Trunk Western Railroad Company, The

Chesapeake’and Ohio Railroad Company, Chicago & East- °

ern Illinois Railroad Company, Southern Railway. Com- |

‘pany, Hlinois Central Railway Company, Central Indiana -

- Railway Company, ‘and The Peoria and Eastern Railway |

Company, pray that a. Writ of Certiorari issue to review the

- judgment of the Supreme Court of “Indiana entered i in “the

above-captioned case on as ‘19, 1966.

/ PA a

. . ‘

an .

VW

D

OPINIONS BELOW

The trial court entered no written opinion. ‘The | revised A

Opinion and judgment of the Supreme Court of Indiana, |

dated May 19, 1966, printed herein at pp. la-l4a as Ap-

pendix A, is reported at 216 N.E.2d 716. The order ac-,

* ecompanying the revision is printed herein as Appendix

A-1, at pp. 15a-16a. The original opinion and judgment of

-* the. ,Supreme Court. ‘of. Tadiana, dated March 8, 1966,. is

es herein at pp. 17 a-28a. as Anyone BL Y

“|... JURISDICTION

.The Suprenie Court of Indiana issued its original opin-

‘ion and judgment on March 8, 1966. A ttmely Petition for

Rehearing, printed herein at pp. 29a-33a as Appendix C, :

was filed on March 25, 1966.7 On May 5, 1966, the Petition —

for Rehearing was denied without opinion by docket entry.

‘This Petition for Certiorari is filed within 90 days of that

denial. On May 19, 1966, upon a Petition for Reconsidera-

tion, the Supreme Court of Indiana amended its opinion

to make clear that a final judgment had been entered, as

follows: _ ~

' “The judgment and deste of the ae i Court of

Marion County, Room 3, is reversed,’ the temporary

- injunction vacated, this cause is remanded, and the’

court is direéted to enter final judgment therein deny-

ing plaintiffs below the relief sought all at the costs

of plaintiffs below... .” (Appendix A, p. 13a)

1 For the reasons indicated below, pp. 4-7, the specific federal

question now presented by this Petition for Certiorari was, neces-

sarily, first raised in the Petition for Rehearing.

w

3

hactdtingy, it i is unquestionable that a final judgment sub-

ject to review by this Court has been entered. Board of

' Comm'rs v. Lucas, 93 U.S. 108 (1876).

‘The jurisdiction of. this Court is invoked under 28

USL. § oe

QUESTION PRESENTED

Whether a state appellate court can, consistent with the

due process requirements of the Fourteenth Amendment, .

deny a trial of federal constitutional issues turning on .

factual presentations by directing the entry of final judg-

ment in ‘the course of an interlocutory review of a tem-

porary injunction.

| CONSTITUTIONAL PROVISION INVOLVED |

‘The Petitioners’ claim is founded on the Due Process

Clause of the Fourteenth Amendment to the Constitution

of the » United States, which reads:

55-1338.

. [Nor shall any State deprive any person of ee

‘ety, or property, without due process of calle “as

STATEMENT

Petitioners: brought this action on May 13, 1964, in the

Superior Court of Marion County, Indiana, seeking a

temporary injunction and a permanent injunction to enjoin

the Public Service Commission of Indiana and appropriate

state officials‘from enforcing the Indiana Full Crew Law’

against Petitioners. That law, enacted in 1937, generally :

“Indiana Acts 1937, ec. 58, §§ 1-13, Indiana Stat. §§ 55-1226 to

g

4

requires that a fireman be employed on every diesel loco- .

motive in Indiana, that every freight train of less than

seventy ‘cars carry five crew members, and that an extra

' erewman (a third brakeman) be added to this ernermaet

on every train of seventy cars or more.

The Petitioners contended* that the Indiana Full Crew |

_ Law constituted both an impermissible burden on, and an .

unlawful and unconstitutional discrimination naiinit, in-

terstate commerce, both in violation of the Commerce

Clause of the Federal Constitution; that the -statute sub:

- stantively violated the Bue Process Clause of the Four-

teenth Amendment; that it violated the Equal Protection

Clause. of the Fourteenth Amendment; and—a contention

later rejected by this Court in the Arkansas full crew case,

Brotherhood of Locomotive Engineers v. Chicago, R. I. &

P. R. Co.; 382 U.S. 423 (1966)*—that the statute was pre-

empted by the compulsory arbitration law, Public Law 88-

108, enacted by Congress in 1963. Four national railroad

brotherhoods intervened as parties defendant, but two—

the brotherhoods representing the engineers and the train-

men—later withdrew from the case.

The Superior Court, after receiving only affidavits and

documentary eyidence, granted a temporary injunction to.

Petitioners on February 3, 1965. The merits of ‘the. Peti-

tioners’ claims were not at issue, neither the defendants nor

-

* See the allegations of the complaint recited in the Indiana Su-

preme Court’s opinion, Appendix A, pp. 2a-da.

‘Contentions similar to those remaining to Petitioner were ‘not ,

passed upon by this Court in the Arkansas full crew case; indeed,

contentions similar to these were expressly found not insubstantial

and were “remanded to [the District] Court for consideration” by

ne ae ee eae 382 U.S., at 438. See also id.,

, o

5)

| : ; ~ ‘ ; a

the intervening defendants having answered the complaint. , °:

No findings of fact were requested or made and no trial

' occurred on the merits of the Petitioners’ request for per- .

manent relief. The defendant state officials and brother- |

hoods appealed the temporary injunction tb the Indiana

_ Supreme Court pursuant to an Indiana procedure “‘per-

mitting such interlocutory appeals. |

_ On March 8, 1966, the Indiana’ Supreme Court rendered

‘an opinion that not only dissolved the temporary injunc-

tion but undertook affirmatively and. finally to. uphold the

Statute against all the attacks raised in Petitioners’ com-

plaint under the Federal Constitution: The Supreme Court

of Indiana thus entered an erder permanently disposing

of the entire action even though the trial court had con- .

sidered only the question whether a temporary injunction by

_ Should issue, and even though no trial on the nitrits of the

plaintiffs’ suit for permanént relief had been held. ’ |

~The Indiana Supreme Court’s opinion was rendered with

two of the court’s five judges not participating and with a

- third concurring only in the result. (Appendix B, p. 28a)

' The two-member majority opinion reviewed this Court’s

recent decision in Brotherhood of Locomotive Engineers

and held—without analysis of the various points urged by.

Petitioners and remaining open despite this Court’s deci-

sion in Brotherhood of Locomotive Engineers—that be-

cause the present Full Crew Law and an earlier version

had already been held constitutional on two occasions and

because of the presumption of constitutionality, the stat-

ute’s constitutionality was beyond challenge. (Appendix ‘B,

> pp. 24a-26a; see Appendix A, pp. 8a-10a) The Indiana Su-

preme Court-did not discuss individually the separate fed-

_ eral constitutional points urged by Petitioners against the

Fall Crew Law.’ Nor did. it offer any explanation of the

réasons why it believed it-had the power to render a final

judgment holding the Act constitutional on an appeal from

a grant of a temporary injunction and in the absence of the

plenary development of facts by oral testimony, cross-

examination, and findings that ould have taken place upon

a. trial looking toward the i issuance of a permanesit anyene-

tion. :

On March 25, 1966, Petitioners submitted a ‘idiie Peti-

tion for Rehearing which, among other points, urged that

the denial of a trial.on the merits of permanent relief was.__

inconsistent with the due process requirements of the Four-

teenth Amendment. This Petition for Rehearing for the

first time raised the federal question now tendered to this

Court—the conflict between the procedural due process re- ©

quirements of the Fourteenth Amendment and the Indiana

Supreme Court’s action in foreclosing any trial on the

merits of the case. The question -was presented in the

following language: » 3

wy

5 The court simply cited this Court’s decision in Brotherhood of

Locomotwe Engineers v. Chicago, RI. & P.R. Co., 382 US. 423

' (1966) (which was. announced while this case was pending before

the Indiana Supreme Court), and stated that it held that the com-

pulsory arbitration law and the Award thereunder did not invali-

date state full crew laws, and that the Arkansas full crew laws had

not been shown to constitute an impermissible discrimination against

interstate commerce by reason of their nonapplication to railroads of .

less than a defined mileage. The claims of unconstitutional burden

- on interstate commerce, of substantive violation of the Due Process

Clause, and under the Equal Protection Clause were not. discussed

‘ by. the State Supreme Court; nor did it even attempt to show how

this Court’s discussion of the discrimination against interstate

commerce point in the Arkansas case—which had been based on

the specific peculiarities of the Arkansas statute and of the mileages ~

of the railroads operating in Arkansas (see 382 US., at 437)—

applied to the situation in Indiana. (Appendix B, pp. 23a-26a ; see

iatimnet A, pp. 7a-10a)

_reTsEmavEpEDETES

“... The appellees, [petitioners in this Court].are en-

_ titled to a trial on the merits of this case, and any

denial of that right would not only constitute error

under Indiana procedural law, but also would deprive

‘ the appellees of their property without due process of

law in violation of the Fourteenth Amendment ‘to the

Constitution of the United States... .” (Appendix C,

_ Pp. 82ay- 0

. Since the question presented concerns an issue created

for the first time by the decision: and opinion of the Indiana

Supreme Court, the question was timely ‘and properly

raised below by its inclusion in a Petition for Rehearing

of that decision. Great Northern R. Co. v. Sunburst Oil

¢ Refining Co., 287 U.S. 358 (1932); Brinkerhoff-Faris

Trust & Savings Co. v. Hill, 281 U.8.-673-(1930); Stern

_ & Gressman, Supreme Court Practice (3d dd. 1962), p. 99.

On May 5, 1966, the Petition for Rehearing was denied

without opinion and without express reference to the pro-

- cedural due process question which had been timely pre-

_Sented in the Petition for Rehearing. The Petitioners filed

a Petition for Reconsideration. On May 19, 1966, while

again not discussing the claim that its action in foreclosing

a trial on the merits violated the Fourteenth Amendment, «

. the Supreme Court of Indiana, by amendment to its opin-.

ion, made it perfectly clear that the lawsuit was terminated

and that Petitioners would not be allowed a. trial on the

;merits.° The Judge who. had originally concurred in the

* The two-judge majority opinion eclared : mi?

“The facts and determination heretofore and here stated,

‘ bar appellees from taking any further action in the court

below and leaves the trial court: with ‘no jurisdiction or au-

thority to grant the relief there prayed for and deprives it of

any further jurisdiction to do anything other than make the

entry required therein by this opinion.” (Appendix A, p. 12a)

i |

result filed.a separate opinion, dissenting from the entry of

final judgment, and stating that “the appellant’ should not

be barred from having a trial on the merits of the main

-action, which is still pending in the trial court, as provided,

' by the mandate in the majority opinion in this case.” (Ap-

pendix i p. 14a)

REASONS FOR GRANTING THE WRIT

1. The action of the seis Conrt of Indiana i in ‘iit. a

ing that final judgment be entered on an interlocutory ap-

‘peal from the grant.of a temporary injunction is in con- ~

flict with the applicable decisions of this. Court and the.

decisions of the’ highest courts of other states delineating

_ the basic elements of a full and fair hearing ay to

due. process of law.

‘©

This Court has recognized that a State appellate court

denies a litigant due process of law in violation of the .

Fourteenth’Amendment to the Constitution if it attempts

to deny the litigant a trial on the merits of a federal con-

stitutional claim. Brinkerhoff-Faris Trust é Savings Co.

v. Hill, 281 U.S. 673 (1930); Saunders v. Shaw, 244 U.S.

. 317 (1917). And the Supreme Court of ‘Illinois has -held

that a trial-court’s conversion, without advance notice, of

_. @ hearing on a temporary injunction into a trial on the

“merits violates the elementary requirement of notice es-

sential to due process. Pettigrew v. National Accounts

System, Inc., 213 N.E.2d 778 (Ill. 1966). A fortiori, the -

conversion of a.preliminary proceeding into a trial on the:

merits of permanent injunctive relief, retroactwely effected

by an appellate court on review of a trial court’s prelimi-

nary order, denies the parties the requisite noticé of the

7 Presumably a misprint for “appellees.”

‘

2

9 '

y

.

- import of the héaring i the trial court, and violates the -

- Due-Process Clause. ,

eet

4 Petitioners’ position is simple: the retroactive conver-

sion of,a ‘preliminary proceeding into a full trial on the

. ee

that the state may not cause legal issues to be framed in

one manner in the trial court, and then prejudicially change,

the issues on appeal—as, for example, by trying’ a defen-

dant ‘on one charge and affirming on appeal his conviction

_ on another, a practice which this Court has held to violate

the Due Process Clause. Cole v. Arkansas, 333 U.S. .196

(1948). Cf. NAACP v. Alabama, 357 U.S. 449 (1958) ; Note,

74 Harv. L. Rev. 1375, 1387-88 (1961).

To be sure, a state court might enter final. judgment —

_ on appeal from a temporary injunction if the merits of

the ‘case turn only on propositions of law in’ the context

of undisputed facts. Board of Comm’rs v. Lucas; 93 US.

108 (1876). -But this is not such a case. The substantive

issues Petitioners sought to present,to the state courts are

* Thus, the question whether a temporary injunction should have

issued involved, besides a preliminary development of the merits,

. an extensive development of the effect of interlocutory relief. upon

SS

the status quo and of the various other equitable factors which are

traditionally weighed by a. court of equity in considering

whether to issue a temporary injunction; these issues are, however,

irrelevant to a permanent injunction? It was in this procedural

setting and to this end that the parties developed their presenta-

tions (which were admittedly bulky) through the submission of

- written proofs, by affidavits and appended exhibits, on the appli-

cation for a temporary injunction. Indeed, the state supreme

' .court’s opinion reflects the importance of the issues as to temporary

_ Telief to the case developed below (Appendix B, pp. 26a-28a), but

nonetheless proceeds to change sad is on appeal.

#

*

10 Renee

: 2s oe & |

in most respects similar to those that are:now before the

_ District Court for’ the Western District of Arkansas on

remand from this Court in the Brotherhood of: Locomotive —

Engineers case. These are the. very questions that this —

‘Court did not consider in the abstract on that appeal,

d which presented “factual issues calling for the’ intros

Pi and determination of evidence.” 382 U.S., at 497.

These issues turn essentially on the development of factual

proofs regarding the nature and ‘extent of the shanged

circumstances achieved through the technological develop-

ments of modern railroading since the enactment of the ©

/ Indiana Full Crew Law. The impact of these changes

upon the role of the various engine and train crew em-

ployees is vital to any assessment of the statute’s validity.

Petitioners’ action did not turn on-abstract questions of

law and could not constitutionally be decided in a “vacuum.

Accordingly, ‘the State Supreme Courts action would

have violated, the. Due Process Clause even had simply —

_ State-created property. rights been at issue. But the viola-

‘tion of the Due Process Clause was aggravated by. tHe fact .

that the underlying rights sought to be vindicated by the ©

Petitioners were federal constitutional, rights.. When a

litigant asserts that changed circumstances since the pas-

sage of a statute have rendered its continued enforcement

against him unconstitutional, the state courts are obliged

to consider the evidence bearing on those circumstances. .

Nashville, C. é St. L. Ry. v. Walters, 294 U.S. 405 (1935).

If*@ue process was denied in Waltérs when evidence of

changed circumstances ‘was ignored, then surely due proc-

ess has been denied to the Petitioners by the denial of the

very trial at which they would adduce their evidence of

changed cireumstances.:

It-was essential to the presentation of Petitioners’ suit

%. vindicate their federal constitutional rights that the full-

a

3

- 1

est possible ieilibilaien record be assembled, tested by __

cross-examination, and winnowed by findings at the trial in

connection with the question of the issuance of a permanent

injunction. Thus, the decisions of this‘Court teach that the ©

development of an evidentiary record which reveals the de-

tails of the burden on interstate commerce is generally

_ essential to an adjudication of the question whether an

improper and unconstitutional . burden exists. See, ¢ G-y

Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) ; Bibb v.

Navajo Freight Lines, Inc., 359 U.S. 520, 528 (1959). A

' similar full development of the factual record has been

the order in cases of challenge to state statutes under the

Fourteenth Amendment’s Due Process and Equal Protection

Clauses. See, ¢.9., Morey v. Doud, 354 U.S. 457 (1957). In

precluding a full development of the- facts, the Indiana

Supreme Court, refused to furnish proper procedures for

the due adjudication of federal rights while at the same --

time proceeding to render a judgment adverse to those

rights. This it may not do. Cf.-Iowa-Des Moinés Nat'l

‘Bank v. Benmett, 284 U.S. 239 (1831). it.

It may be questioned whether a state could constitution-

ally provide such a truncated procedure—-without confron-

tation: of witnesses or rights of cross-examination—for

the determination of federal constitutional issues turning

on factual development even if that procedure were pre-

scribed in advance ‘by statute or decisional law. See The

Ottawa, 3 Wall. 268 (1866); Du Beau v. Smither and

Mayton, Inc., 203. F.2d 395 (D.C: Cir. 1953) ; Pavaroff v.

Pavaroff, 130 P.2d 212 (Cal. App. 1942); cf. Greene v. Mc- |

Elroy, 360 U.S. 474, 497 (1959). But surely a state cannot |

adyise the parties after the fact that this abbreviated hear-

ing was all the trial they are to receive on issues requiring

plenary development of the- ‘pertinent facts.

2. This case is certainly of a significance indicating the

_need for review on certiorari. A state appellate court action

denying the parties a trial'on the merits of their claim

obviously presents a federal constitutional issue’ of sub- |

stance. Where the underlying claim involves federal con-"

' stitutional rights, the need for this Court’s intervention as

- arbiter of the federal system beeomes even more acute; and

_ the significance of those federal claims here increases the ;

seriousness of the matter. This Court recognized in

Brotherhood of Locomotive Engineers v. Chicago, R.I. ¢

| }

' P.R. Co., 382 US. 423. 428 (1966), that the challenges to ee cae

state full-crew laws based on the Commerce Clause and on |

the Due Process and Equal Protection Clauses of the. Four-

teenth Amendment are not insubstantial. And the practical

significance of these i issues to the railroad industry is enor- _ }

mous. The annual cost‘of compliance with the. Indiana

3 statute alone has been estimated to be sixteen million dol-

lars.*, Several other states impose. similar burdens on the

industry. Thus the underlying merits of this lawsuit are

undeniably of major import to the railroad industry, to the

interstate transportation network: it serves, and to the -

states still imposing full crew requirements. And, even if

it were to be assumed that regardless of whether the peti- |

tioners make a compelling factual: showing, the Indiana

Supreme Court: (despite its narrow majority) will not -

change its mind as to the constitutionality of the Full Crew

Law, the fact remains that that court’s action in precluding

the development of a full record amounts to’ an unconstitu-

tional clog on this Court’s consideration, on ‘Yeview of the

- Indiana’ court’s decision, of - the underlying er

questions. .

See B. 262, 274, 287, 297, 308, 319, 328, 336, 344, 354, 364, 374,

' 394, 409, 420. (References are to the Record ‘before the Indiana

Supreme Court.) ; ;

| : 13

3. It has been ediniahid by Daajsitdtn ¢ that Peiiticanie

requested a final judgment by the Supreme Court of Indiana

and, accordingly, waived the issue presented by’ this Peti-

tion.*® But Petitioners have made no such waiver. Respon-

dents base their claim on the following passage from page a .

130 of Petitioners’ brief i in the Supreme Court of Indiana:

“The issue in this case involves the constitutionality

of the Indiana Excess Crew Law. It is a.matter of ;

public interest to the people of the State of Indiana

as well as to all the railroads operating in Indiana. Be-’

cause of the importance of tha issues presented, this

- Court ould determine the constitutionality of thislaw - .

now as it has done in other. cases involving the appeal

of a temporary injunction. Tinder v. Clarké Auto Co. 0

238 Ind. 302, 149 N.E.2d 808 (1958); Department of

Insurance v. Motors Insurance vie cath 236 Ind. 1, 138

N.E. ” 157 (1956).” :

This velan must be judged in “the context of the fed- .

eral constitutional issues which were then available to. Peti-

tioners.in the state courts, and of the settled Indiana | prac-

tice with respect to.appeals from temporary injunctions.

Petitioners based the request on two grounds. First, at the

time this case was briefed and argued the decision of this

Court in the Arkansas full crew case had not yet been 5

rendered.” Accordingly, Petitioners believed that one of.

their four bases of unconstitutionality | (preemption by

reason of Public Law 88-108 ‘and the Arbitration Award)

10 This suggestion is csaliatisod in Respondents’ Opposition to a

Stay requested by Petitioners in this Court, pp. 8, et seq.

~ 11 The opinion -in Brotherhood of Locomotive Engineers ¥: Chi-

cago, R.I. & P.R. Co., 382 U.S. 423, was rendered January 31, 1966.

Petitioners’ brief in ‘the Supreme Court of Indiana was filed. pApett

21, 1965, and argument was held ¢ on June 2, 1965. . .

4

Fa

1 cae 14

~ which: involved no development of evidence, if accepted,

would be dispositive of the case even on interlocutory ap-

peal.” Cf. Board of Comm’rs v. Lucas, 93 U.S. 108 (1876).

It was to this point—the preemption point—that peti-'

tioners awarded preeminence in briefing and oral argu-

ment. Second, as the two Indiana case® cited in the quoted

_ passage demonstrate, the Indiana Supreme Court has on

occasion in other circumstances remMered an opinion as to

the constitutionality of a statute even though the issue is

presented on interlocutory appeal. But the opinion and

_ decision so rendered ‘have not been final; there is merely a °

decision’ on the abbreviated record then before the court,

subject to further factual development at the subsequent

trial on the: merits. In Weis v. Cox, 205 Ind. 43, 185 N.E.

631, 632- 33 (1933), *the Indiana Supreme Court explained

this practice as follows :

“But since. there seems to have been a full hearing”

[on the motion for temporary injunction], we will con-.

sider-the questions presented upon their merits, having

in mind, however, that upon a final hearing there may

be other or different evidence which might influence

the decision of the trial court... .”

Petitioners asked for a- determination of the’ constitu-

tional issues, but.they never asked for or invited a final

- judgment on those constitutional issues turning on ques-

. tions of fact. .Pétitioners requested either a holding on the

_ issue of preemption, a proposition of law not requiring

factual devélopment, or a preliminary adjudication on the

three remaining bases for injunctive ‘relief, all involving

.questions of fact eventually requiring a full development at

+ 1@Tndeed, in the Arkansas case, this Conih: (and the. District

Court, whose order was being appealed from)’ both were able to

make a final determination as to the preemption question on a

‘summary judgment record. See 382 U.S,, at 427-28.

?

‘o

July, 1966

‘15

' trial. Either of those actions would vam oy standard

in Indiana procedure and inoffensive to the requirements

‘of procedural due process. But the action of the Supreme

Court of Tiidiana in this case is unprecedented and has

denied Petitioners their’ ‘day in court in violation of the

most elementary requirements of due process of law.

CONCLUSION

For the reasons tated, this Petition for a Writ of Cer-

tiorari tt the Supreme vourt of Indiana should be granted

Respectfully submitted,

“Karu J. Srruzn

’ Dante E. Jonnson

810 Fletcher Trust Building

_; Indianapolis, ~_—

Q: : \

\ aay _Paut A. Porrer | :

Dennis G. Lyons . . |

1229 Nineteenth Street, N.W.

Washington, D. C.. 20036

Attorneys for Petitioners:

.

”~

s

Of Counsel :

BaKER & Dams

Indianapolis, Indiana

Arnotp & Porter | |

Washington, D. C. | ; | -