541 Opinion of the Court. in which such verdict, judgment, rule or order was obtained or entered up to cause the same to be set aside upon motion and notice to the adverse party; but it shall not be lawful for the said court to do so, unless the person charged with such perjury shall have been thereof duly convicted, and unless it shall appear to the said court that the said verdict, judgment, rule or order could not have been obtained and entered up without the evidence of such perjured person, saving always to third persons innocent of such perjury the rights which they may lawfully have acquired under such verdict, judgment, rule, or order before the same shall have been actually vacated and set aside'; and Burke v. State, 205 Ga. 656, et seq. which is a decision of the Supreme Court of this State and is therefore binding on this Court, and in which the Constitutional question raised by the plaintiff in error was decided adversely to his contentions. The decision of this Court on the rehearing in question being adverse to the plaintiff in error necessarily brought into consideration the question of whether the rights of the plaintiff in error as guaranteed to him under the 14th Amendment to the Constitution of the United States had been violated, and such decision necessarily determined that such rights had not been so violated. The decision by this court denying the rehearing necessarily determined that the action of the Solicitor General as shown by the record did not deprive the plaintiff in error of any rights guaranteed to him under the 14th Amendment of the Constitution of the United States; also the decision of this court necessarily applied the Fourteenth Amendment to the Constitution of the United States to Sec. 110706 of the Code of Georgia of 1933 and decided that its application in this case did not amount to an Opinion of the Court. 343 U.S. abridgement of any of the rights of the plaintiff in error guaranteed to him under the 14th Amendment to the Constitution of the United States; and also that this Court necessarily considered Burke v. State, 205 Ga. 656, which is a decision of the Supreme Court of this State by which this Court is bound and which must be followed by this Court, the effect of which is to hold that it does not abridge any of the rights of the plaintiff in error guaranteed to him under the 14th Amendment to the Constitution of the United States." Review of this amending order, which purported to pass upon the constitutional question raised in the motion for rehearing, was not sought in the Supreme Court of Georgia. Instead, certiorari was sought here and granted. 342 U. S. 940. First, since the Supreme Court of Georgia, which was the highest court of the state in which a decision could be had in this case, was not asked to pass upon and did not pass upon the purported amending order, we have no occasion to consider its effect. Secondly, at the time the petition for certiorari was denied by the Supreme Court of Georgia, there appeared in the petition the following recital: "This judgment and decision of the Court of Appeals in this case in failing and refusing to decide applicant's case in accordance with Sec. 2-3708 of the Constitution of Georgia also violates article 1, sec. 1, par. 3 of the Constitution of Georgia (Code § 2-103) and the Fourteenth Amendment to the Constitution of the United States (Code Sec. 1-815); both of which sections provide that no person shall be deprived of his liberty without due process of law; and article 1, sec. 1, par. 2, of the Constitution of the State of Georgia and the Fourteenth Amendment to 541 Opinion of the Court. the Constitution of the United States (Code § 1815), guaranteeing to all persons equal protection of the law." It is apparent from the record that the Supreme Court of Georgia took no action upon the question of federal constitutional rights raised for the first time on the motion for rehearing in the Court of Appeals. This was in accord with its rule that constitutional questions must first be raised in the trial court. Beckmann v. Atlantic Rfg. Co., 181 Ga. 456, 182 S. E. 595. The attempt to raise the question of constitutional rights in the general terms of the above quotation from the petition for certiorari did not begin to meet the requirement of the Supreme Court of Georgia for definiteness. Persons v. Lea, 207 Ga. 384, 61 S. E. 2d 832. At this stage, the Supreme Court of Georgia could have denied certiorari on adequate state grounds. Where the highest court of the state delivers no opinion and it appears that the judgment might have rested upon a nonfederal ground, this Court will not take jurisdiction to review the judgment. Hedgebeth v. North Carolina, 334 U. S. 806; Woods v. Nierstheimer, 328 U. S. 211; White v. Ragen, 324 U. S. 760; McGoldrick v. Gulf Oil Corp., 309 U. S. 2; Woolsey v. Best, 299 U. S. 1; Lynch v. New York ex rel. Pierson, 293 U. S. 52; Cuyahoga Power Co. v. Northern Realty Co., 244 U. S. 300, 303-304; Adams v. Russell, 229 U. S. 353, 358–362; Allen v. Arguimbau, 198 U. S. 149, 154–155; Johnson v. Risk, 137 U. S. 300, 307; Klinger v. Missouri, 13 Wall. 257, 263. The amending order of the Georgia Court of Appeals does not, in our view, change the posture of this case-it does not remove the strong possibility, in light of Georgia law, that the Supreme Court of Georgia might have rested its order on a nonfederal ground. We are without jurisdiction when the question of the existence of an 994084 0-52-39 REED, J., concurring. 343 U.S. adequate state ground is debatable. Bachtel v. Wilson, 204 U. S. 36. The petition for certiorari was improvidently granted, and the case is dismissed. Dismissed. MR. JUSTICE REED, concurring. While I think the better course would be to affirm the decision of the Georgia courts, I join in the judgment of this Court. MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON dissent from the dismissal. Syllabus. THOMPSON, TRUSTEE, MISSOURI PACIFIC RAILROAD CO. v. UNITED STATES ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI. No. 513. Argued April 23, 1952.-Decided June 2, 1952. Grain may be shipped over the Missouri Pacific Railroad to Kansas City from Lenora via Atchison, Kansas, at 19¢ per 100 pounds; and the rate to Omaha is 25.5¢. Upon complaint that the Missouri Pacific's rates discriminate against Omaha, the Interstate Commerce Commission, without attempting to make the inquiry and findings required by § 15 of the Interstate Commerce Act for the establishment of through routes, but finding that a through route from Lenora to Omaha via Concordia and the Burlington Railroad was already in existence, ordered the Missouri Pacific to provide transportation over that route at a rate not exceeding the rate to Kansas City. There was no evidence that the carriers had ever offered through service from Lenora to Omaha via the Burlington. Held: The order of the Commission was without evidentiary support and was invalid under the Interstate Commerce Act. Pp. 550–561. 1. The Commission's finding that a through route from Lenora to Omaha via the Burlington was already in existence is inconsistent with the meaning of "through route" as used in the Interstate Commerce Act. Pp. 552-561. (a) The Commission's power to establish through routes is limited by § 15 (3) and (4) of the Act, whenever, as here, a carrier would be required to short haul itself. Pp. 552-555. (b) The test of the existence of a "through route" is whether the participating carriers hold themselves out as offering through transportation service. Pp. 556–557. (c) The fact that the Missouri Pacific connects with the Burlington at Concordia does not aid the Commission in proving the existence of a through route, since the power to establish through routes under § 15 presupposes such physical connection. Pp. 557558. (d) The showing that the Missouri Pacific publishes a local rate from Lenora to Concordia and that the Burlington publishes a local rate from Concordia to Omaha proves only that each carrier complies with the statutory duty to publish rates for transportation service between points on its own lines. P. 558. |