author: Mr. Justice Black Mr. Justice Douglas, Mr. Justice Harlan.

text:
    MILLS v. ALABAMA.
    No. 597.
    Argued April 19, 1966.
    Decided May 23, 1966.

      Kenneth Perrine and Alfred Swedlaw argued the cause and filed a brief for appellant.

      Leslie Hall, Assistant Attorney General of Alabama, and Burgin Hatokins argued the cause for appellee. With them on the brief was Richmond M. Flowers, Attorney General.
    Briefs of amici curiae, urging reversal, were filed by James C. Barton for the Alabama Press Association et al., and by Charles Morgan, Jr., Melvin L. Wulf and C. H. Erskine Smith for the American Civil Liberties Union et al.
   Mr. Justice Black

delivered the opinion of the Court.

The question squarely presented here is whether a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them.

On November 6, 1962, Birmingham, Alabama, held an election for the people to decide whether they preferred to keep their existing city commission form of government or replace it with a mayor-council government. On election day the Birmingham Post-Herald, a dhily newspaper, carried an editorial written by its editor, appellant, James E. Mills, which strongly urged the people to adopt the mayor-council form of government. Mills was later arrested on a complaint charging that by publishing the editorial on election day he had violated § 285 of the Alabama Corrupt Practices Act, Ala. Code, 1940, Tit. 17, §§ 268-286, which makes it a crime “to do any electioneering or to solicit any votes ... in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.” The trial court sustained demurrers to the complaint on the grounds that the state statute abridged freedom of speech and press in violation of the Alabama Constitution and the First and Fourteenth Amendments to the United States Constitution. On appeal by the State, the Alabama Supreme Court held that publication of the editorial on election day undoubtedly violated the state law and then went on to reverse the trial court by holding that the state statute as applied did not unconstitutionally abridge freedom of speech or press. Recognizing that the state law did limit and restrict both speech and press, the State Supreme Court nevertheless sustained it as a valid exercise of the State’s police power chiefly because, as that court said, the press “restriction, everything considered, is within the field of reasonableness” and “not an unreasonable limitation upon free speech, which includes free press.” 278 Ala. 188, 195, 196, 176 So. 2d 884, 890. The case is here on appeal under 28 U. S. C. § 1257 (1964 ed.).

I.

The State has moved to dismiss this appeal on the ground that the Alabama Supreme Court’s judgment is not a “final judgment” and therefore not appealable under § 1257. The State argues that since the Alabama Supreme Court remanded the case to the trial court for further proceedings not inconsistent with its opinion (which would include a trial), the Supreme Court’s judgment cannot be considered “final.” This argument has a surface plausibility, since it is true the judgment of the State Supreme Court did not literally end the case. It did, however, render a judgment binding upon the trial court that it must convict Mills under this state statute if he wrote and published the editorial. Mills concedes that he did, and he therefore has no defense in the Alabama trial court. Thus if the case goes back to the trial court, the trial, so far as this record shows, would be no more than a few formal gestures leading inexorably towards a conviction, and then another appeal to the Alabama Supreme Court for it formally to repeat its rejection of Mills’ constitutional contentions whereupon the case could then once more wind its weary way back to us as a judgment unquestionably final and appealable. Such a roundabout process would not only be an inexcusable delay of the benefits Congress intended to grant by providing for appeal to this Court, but it would also result in a completely unnecessary waste of time and energy in judicial systems already troubled by delays due to congested dockets. The language of § 1257 as we construed it in Pope v. Atlantic Coast Line R. Co., 345 U. S. 379, 381-383, does not require a result leading to such consequences. See also Construction Laborers v. Curry, 371 U. S. 542, 548-551; Richfield Oil Corp. v. State Board, 329 U. S. 69, 72-74. Following those cases we hold that we have jurisdiction.

II.

We come now to the merits. The First Amendment, which applies to the States through the Fourteenth, prohibits laws “abridging the freedom of speech, or of the press.” The question here is whether it abridges freedom of the press for a State to punish a newspaper editor for doing no more than publishing an editorial on election day urging people to vote a particular way in the election. We should point out at once that this question in no way involves the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there. The sole reason for the charge that Mills violated the law is that he wrote and published an editorial on election day urging Birmingham voters to cast their votes in favor of changing their form of government.

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U. S. 444, to play an important role in the discussion of public affairs. Thus the press serves-, and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as -a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.

Admitting that the state law restricted a newspaper editor’s freedom to publish editorials on election day, the Alabama Supreme Court nevertheless sustained the constitutionality of the law on the ground that the restrictions on the press were only “reasonable restrictions” or at least “within the field of reasonableness.” The court reached this conclusion because it thought the law imposed only a minor limitation on the press — restricting it only on election days — and because the court thought the law served a good purpose. It said:

“It is a salutary legislative enactment that protects the public from confusive last-minute charges and countercharges and the distribution of propaganda in an effort to influence voters on an election day; when as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over.” 278 Ala. 188, 195-196, 176 So. 2d 884, 890.

This argument, even if it were relevant to the constitutionality of the law, has a fatal flaw. The state statute leaves people free to hurl their campaign charges up to the last minute of the day before election. The law held valid by the Alabama Supreme Court then goes on to make it a crime to answer those “last-minute” charges on election day, the only time they can be effectively answered. Because the law prevents any adequate reply to these charges, it is wholly ineffective in protecting the electorate “from confusive last-minute charges and countercharges.” We hold that no test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election.

The judgment of the Supreme Court of Alabama is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

with whom Mr. Justice Brennan joins,

concurring.

Although I join the opinion of the Court, I think it appropriate to add a few words about the finality of the judgment we reverse today, particularly in view of'the observation in the separate opinion of Mr. Justice Harlan that “limitations on the jurisdiction of this Court . . . should be respected and not turned on and off at the pleasure of its members or to suit the convenience of litigants.”

The decision of the Alabama Supreme Court approved a law which, in my view, is a blatant violation of freedom of the press. The threat of penal sanctions has, we are told, already taken its toll in Alabama: the Alabama Press Association and the Southern Newspaper Publishers Association, as aw,id curiae, tell us that since November 1962 editorial comment on election day has been nonexistent in Alabama. The chilling effect of this prosecution is thus anything but hypothetical; it is currently being experienced by the newspapers and the people of Alabama.

We deal here with the rights of free speech and press in a basic form: the right to express views on matters before the electorate. In light of appellant’s concession that he has no other defense to offer should the case go to trial, compare Pope v. Atlantic Coast Line R. Co., 345 U. S. 379; Richfield Oil Corp. v. State Board, 329 U. S. 69, and considering the importance of the First Amendment rights at stake in this litigation, it would require regard for some remote, theoretical interests of federalism to conclude that this Court lacks jurisdiction because of the unlikely possibility that a jury might disregard a trial judge’s instructions and acquit.

Indeed, even had appellant been unwilling to concede that he has no defense — apart from the constitutional question — to the charges against him, we would be warranted in reviewing this case. That result follows a fortiori from our holdings that where First Amendment rights are jeopardized by a state prosecution which, by its very nature, threatens to deter others from exercising their First Amendment rights, a federal court will take the extraordinary step of enjoining the state prosecution. Dombrowski v. Pfister, 380 U. S. 479; Cameron v. Johnson, 381 U. S. 741. As already noted, this case has brought editorial comment on election day to a halt throughout the State of Alabama. Our observation in NAACP v. Button, 371 U. S. 415, 433, has grim relevance here: “The threat of sanctions may deter . . . exercise [of First Amendment rights] almost as potently as the actual application of sanctions.”

For these reasons, and for the reasons stated in the opinion of the Court, I conclude that the judgment is final.

Separate opinion of

Mr. Justice Harlan.

In my opinion the appellant is not here on a “final” state judgment and therefore under 28 U. S. C. § 1257 (1964 ed.) the Court has no jurisdiction to entertain this appeal. Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62; cf. Parr v. United States, 351 U. S. 513.

Although his demurrer to the criminal complaint has been overruled by the highest court of the State, the appellant still faces a trial on the charges against him. If the jury fails to convict — a possibility which, unless the courtroom antennae of a former trial lawyer have become dulled by his years on the bench, is by no means remote in a case so unusual as this one is- — -the constitutional issue now decided will have been prematurely adjudicated. But even were one mistaken in thinking that a jury might well take the bit in its teeth and acquit, despite the Alabama Supreme Court’s ruling on the demurrer and the appellant’s admitted authorship of the editorial in question, the federal statute nonetheless commands us not to adjudicate the issue decided until the prosecution has run its final course in the state courts, adversely to the appellant.

Although of course much can be said in favor of deciding the constitutional issue now, and both sides have indicated their desire that we do so, I continue to believe that constitutionally permissible limitations on the jurisdiction of this Court, such as those contained in § 1257 undoubtedly are, should be respected and not turned on and off at the pleasure of its members or to suit the convenience of litigants. If the traditional federal policy of “finality” is to be changed, Congress is the body to do it. I would dismiss this appeal for want of jurisdiction.

Since the Court has decided otherwise, however, I feel warranted in making a summary statement of my views on the merits of the case. I agree with the Court that the decision below cannot stand. But I would rest reversal on the ground that the relevant provision of the Alabama statute — “to do any electioneering or to solicit any votes [on election day] ... in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held” — did not give the appellant, particularly in the context of the rest of the statute (ante, p. 216, n. 2) and in the absence of any relevant authoritative state judicial decision, fair warning that the publication of an editorial of this kind was reached by the foregoing provisions of the Alabama Corrupt Practices Act. See Winters v. New York, 333 U. S. 507. I deem a broader holding unnecessary.

       The editorial said in part: “Mayor Hanes’ proposal to buy the votes of city employees with a promise of pay raises which would cost the taxpayers nearly a million dollars a year was cause enough to destroy any confidence the public might have had left in .him.
      “It was another good reason why the voters should vote overwhelmingly today in favor of Mayor-Council government.
      “Now Mr. Hanes, in his arrogance, proposes to set himself up as news censor at City Hall and 'win or lose’ today he says he will instruct all city employees under him to neither give out news regarding the public business with which they are entrusted nor to discuss it with reporters either from the Post-Herald or the News.
      “If Mayor Hanes displays such arrogant disregard of the public’s right to know on the eve of the election what can we expect in the future if the City Commission should be retained?
      “Let’s take no chances.
      “Birmingham and the people of Birmingham deserve a better break. A vote for Mayor-Council government will give it to them.”

       “§ 285 (599) Corrupt practices at elections enumerated and defined. — It is a corrupt practice for any person on any election day to intimidate or attempt to intimidate an elector or any of the election officers; or, obstruct or hinder or attempt to obstruct or hinder, or prevent or attempt to prevent the forming of the lines of the voters awaiting their opportunity or time to enter the election booths; or to hire or to let for hire any automobile or other conveyance for the purpose of conveying electors to and from the polls; or, to do any electioneering or to solicit any votes or to promise to cast any votes for or against the election or nomination of any candidate, or in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.” Ala. Code, 1940, Tit. 17.

       Section 1257 provides in part: “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . . .”

       This case was instituted more than three and one-half years ago. If jurisdiction is refused, we cannot know that it will not take another three and one-half years to get this constitutional question finally determined.

      In California v. Stewart, 383 U. S. 903, where a state court reversed a criminal conviction on federal grounds, we ruled on a motion to dismiss that the State may obtain review in this Court even though a new trial remained to be held. We reached that conclusion because otherwise the State would be permanently precluded from raising the federal question, state law not permitting the prosecution to appeal from an acquittal. And see Construction Laborers v. Curry, 371 U. S. 542; Mercantile National Bank v. Langdeau, 371 U. S. 555.

       At oral argument in this Court appellant’s counsel conceded that a jury trial was still obtainable, see Ala. Code, Tit. 13, § 326; Tit. 15, §321 (1958 Recomp.), and that it might result in an acquittal.

       Compare Construction Laborers v. Curry, 371 U. S. 542, and Mercantile National Bank v. Langdeau, 371 U. S. 555. The three cases cited by the Court, ante, p. 218, fall short of supporting the “finality” of the judgment before us. None of them involved jury trials, and in each instance the case was returned to the lower court in a posture where as a practical matter all that remained to be done was to enter judgment. What is done today more than ever erodes the final judgment rule.


source: Caselaw Access Project

author: Mr. Justice Douglas Mr. Justice Harlan,

license: Public Domain

text:
    UNITED STATES v. STANDARD OIL CO.
    No. 291.
    Argued January 25, 1966.
    Decided May 23, 1966.

      Nathan Lewin argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson and Beatrice Rosenberg.

      Earl B. Hadlow argued the cause and filed a brief for appellee.
   Mr. Justice Douglas

delivered the opinion of the Court.

The question presented for decision is whether the statutory ban on depositing “any refuse matter of any kind or description” in a navigable water covers the discharge of commercially valuable aviation gasoline.

Section 13 of the Rivers and Harbors Act provides:

“It shall not be lawful to throw, discharge, or deposit . . . any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States . . . .” 33 U. S. C. § 407 (1964 ed.).

The indictment charged appellee, Standard Oil (Kentucky), with violating § 13 by allowing to be discharged into the St. Johns River “refuse matter” consisting of 100-octane aviation gasoline. Appellee moved to dismiss the indictment, and, for the purposes of the motion, the parties entered into a stipulation of fact. It states that the gasoline was commercially valuable and that it was discharged into the St. Johns only because a shut-off valve at dockside had been “accidentally” left open.

The District Court dismissed the indictment because it was of the view that the statutory phrase “refuse matter” does not include commercially valuable oil. The United States appealed directly to this Court under the Criminal Appeals Act (18 U. S. C. § 3731 (1964 ed.)). We noted probable jurisdiction. 382 U. S. 807.

This case comes to us at a time in the Nation’s history when there is greater concern than ever over pollution— one of the main threats to our free-flowing rivers and to our lakes as well. The crisis that we face in this respect would not, of course, warrant us in manufacturing offenses where Congress has not acted nor in stretching statutory language in a criminal field to meet strange conditions. But whatever may be said of the rule of strict construction, it cannot provide a substitute for common sense, precedent, and legislative history. We cannot construe § 13 of the Rivers and Harbors Act in a vacuum. Nor can we read it as Baron Parke would read a pleading.

The statutory words are “any refuse matter of any kind or description.” We said in United States v. Republic Steel Corp., 362 U. S. 482, 491, that the history of this provision and of related legislation dealing with our free-flowing rivers “forbids a narrow, cramped reading” of § 13. The District Court recognized that if this were waste oil it would be “refuse matter” within the meaning of § 13 but concluded that it was not within the statute because it was “valuable” oil. That is “a narrow, cramped reading” of § 13 in partial defeat of its purpose.

Oil is oil and whether useable or not by industrial standards it has the same deleterious effect on waterways. In either case, its presence in our rivers and harbors is both a menace to navigation and a pollutant. This seems to be the administrative construction of § 13, the Solicitor General advising us that it is the basis of prosecution in approximately one-third of the oil pollution cases reported to the Department of Justice by the Office of the Chief of Engineers.

Section 13 codified pre-existing statutes:

An 1886 Act (24 Stat. 329) made it unlawful to empty “any ballast, stone, slate, gravel, earth, slack, rubbish, wreck, filth, slabs, edgings, sawdust, slag, or cinders, or other refuse or mill-waste of any kind into New York Harbor” — which plainly includes valuable pre-discharge material.

An 1888 Act (25 Stat. 209) “to prevent obstructive and injurious deposits” within the Harbor of New York and adjacent waters banned the discharge of “refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind, other than that flowing from streets, sewers, and passing therefrom in a liquid state” — which also plainly includes valuable pre-discharge material. (Emphasis added.)

The 1890 Act (26 Stat. 453) made unlawful emptying into navigable waters “any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind . . . which shall tend to impede or obstruct navigation.” Here also valuable pre-discharge materials were included.

The 1894 Act (28 Stat. 363) prohibited deposits in harbors and rivers for which Congress had appropriated money for improvements, of “ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state.” (Emphasis added.) This Act also included valuable pre-discharge material.

The Acts of 1886 and 1888, then, dealt specifically with the New York Harbor; the scope of the latter was considerably broader, covering as it did the deposit of “any other matter of any kind.” The Acts of 1890 and 1894 paralleled the earlier enactments pertaining to New York, applying their terms to waterways throughout the Nation. •

The 1899 Act now before us was no more than an attempt to consolidate these prior Acts into one. It was indeed stated by the sponsor in the Senate to be “in accord with the statutes now in existence, only scattered . . . from the beginning of the statutes down through to the end” (32 Cong. Rec. 2296), and reflecting merely “[v]ery slight changes to remove ambiguities.” Id., p. 2297.

From an examination of these statutes, several points are clear. First, the 1894 Act and its antecedent, the 1888 Act applicable to the New York Harbor, drew on their face no distinction between valuable and valueless substances. Second, of the enumerated substances, some may well have had commercial or industrial value prior to discharge into the covered waterways. To be more specific, ashes and acids were banned whether or not they had any remaining commercial or industrial value. Third, these Acts applied not only to the enumerated substances but also to the discharge of “any other matter of any kind.” Since the enumerated substances included those with a pre-discharge value, the rule of ejusdem generis does not require limiting this latter category to substances lacking a pre-discharge value. Fourth, the coverage of these Acts was not diminished by the codification of 1899. The use of the term “refuse” in the codification serves in the place of the lengthy list of enumerated substances found in the earlier Acts and the catch-all provision found in the Act of 1890. The legislative history demonstrates without contradiction that Congress intended to codify without substantive change the earlier Acts.

The philosophy of those antecedent laws seems to us to be clearly embodied in the present law. It is plain from its legislative history that the “serious injury”' to our watercourses (S. Rep. No. 224, 50th Cong., 1st Sess., p. 2) sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution — “the discharge of sawmill waste into streams” (ibid.) and the injury of channels by “deposits of ballast, steam-boat ashes, oysters, and rubbish from passing vessels.” Ibid. The list is obviously not an exhaustive list of pollutants. The words of the Act are broad and inclusive: “any refuse matter of any kind or description whatever.” Only one exception is stated: “other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States.” More comprehensive language would be difficult to select. The word “refuse” does not stand alone; the “refuse” banned is “of any kind or description whatever,” apart from the one exception noted. And, for the reasons already stated, the meaning we must give the term “refuse” must reflect the present codification’s statutory antecedents.

The Court of Appeals for the Second Circuit in United States v. Ballard Oil Co., 195 F. 2d 369 (L. Hand, Augustus Hand, and Harrie Chase, JJ.) held that causing good oil to spill into a watercourse violated § 13. The word “refuse” in that setting, said the court, “is satisfied by anything which has become waste, however useful it may earlier have been.” Id., p. 371. There is nothing more deserving of the label “refuse” than oil spilled into a river.

That seems to us to be the common sense of the matter. The word “refuse” includes all foreign substances and pollutants apart from those “flowing from streets and sewers and passing therefrom in a liquid state” into the watercourse.

That reading of § 13 is in keeping with the teaching of Mr. Justice Holmes that a “river is more than an amenity, it is a treasure.” New Jersey v. New York, 283 U. S. 336, 342. It reads § 13 charitably as United States v. Republic Steel Corp., supra, admonished.

We pass only on the quality of the pollutant, not on the quantity of proof necessary to support a conviction nor on the question as to what scienter requirement the Act imposes, as those questions are not before us in this restricted appeal.

Reversed.

Mr. Justice Harlan,

whom Mr. Justice Black and Mr. Justice Stewart join,

dissenting.

Had the majority in judging this case been content to confine itself to applying relevant rules of law and to leave policies affecting the proper conservation of the Nation’s rivers to be dealt with by the Congress, I think that today’s decision in this criminal case would have eventuated differently. The best that can be said for the Government’s case is that the reach of the provision of § 13 of the Rivers and Harbors Act of 1899, 30 Stat. 1152, 33 U. S. C. § 407 (1964 ed.), under which this indictment is laid, is uncertain. This calls into play the traditional rule that penal statutes are to be strictly construed. In my opinion application of that rule requires a dismissal of the indictment.

I.

Section 13 forbids the deposit of all kinds of “refuse matter” into navigable rivers “other than that flowing from streets and sewers and passing therefrom in a liquid state.” As the Court notes, this 1899 Act was part of a codification of prior statutes. This revamping was not discussed at any length on the floor of either House of Congress; the Senate was informed only that the provisions were merely a codification of existing law, without changes in substance. 32 Cong. Rec. 2296-2297 (1899). Section 13 was in fact based on two very similar prior statutes. The rivers and harbors appropriation act of 1890 provided the first national anti-obstruction provision, 26 Stat. 453:

“Sec. 6. That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to be cast, thrown, emptied, or unladen, either from or out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river, or navigable waters of the United States which shall tend to impede or obstruct navigation . . . .”

A later statute, § 6 of the Rivers and Harbors Act of 1894, 28 Stat. 363, provided somewhat similarly:

“That it shall not be lawful to place, discharge, or deposit, by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor or river of the United States, for the improvement of which money has been appropriated by Congress . . . .”

The Court relies primarily on the latter Act, contending that its applicability to “any other matter of any kind” would surely encompass oil, even though commercially valuable. Further, the Court notes (ante, p. 228) that the 1894 statute was modeled after a federal statute of 1888 dealing with New York Harbor, 25 Stat. 209. Under this New York Harbor Act, which still remains on the books, 33 U. S. C. § 441 et seq. £1964 ed.), prosecutions for accidental deposits of commercially useful oil have been sustained. The Colombo, 42 F. 2d 211. This background is thought to reinforce the view that oil of any type would fall within the 1894 statute’s purview. Since the present enactment was intended to be merely a codification, the majority concludes that the construction of the broader 1894 predecessor should govern.

Whatever might be said about how properly to interpret the 1890 and, more especially, the 1894 statutes, it is the 1899 Act that has been on thé books for the last 67 years, and its purposes and language must guide the determination of this case. To the extent that there were some differences in scope between the 1890 and 1894 Acts, these were necessarily resolved in the 1899 codification, which, while embodying the essential thrust of both prior statutes, appears from its plain language to have favored the more restrictive coverage of the 1890 Act. Moreover, it is questionable to what extent the Court’s speculation as to the meaning of a phrase in one of the prior statutes is relevant at all when the language of the present statute, which is penal in nature, is in itself explicit and unambiguous.

The purpose of § 13 was essentially to eliminate obstructions to navigation and interference with- public works projects. This 1899 enactment, like the two preexisting statutes which it was intended to codify, was a minor section attached to a major appropriation act together with other measures dealing with sunken wrecks, trespassing at public works sites, and obstructions caused by improperly constructed bridges, piers, and other structures. These statutes were rendered necessary primarily because navigable rivers, which the Congress was appropriating funds to improve, were being obstructed by depositing of waste materials by factories and ships. It is of course true, as the Court observes, that “oil is oil,” ante, p. 226, and that the accidental spillage of valuable oil may have substantially the same “deleterious effect on waterways” as the wholesale depositing of waste oil. But the relevant inquiry is not the admittedly important concerns of pollution control, but Congress’ purpose in enacting this anti-obstruction Act, and that appears quite plainly to be a desire to halt through the imposition of criminal penalties the depositing of obstructing refuse matter in rivers and harbors.

The Court’s construction eschews the everyday meaning of “refuse matter” — waste, rubbish, trash, debris, garbage, see Webster’s New International Dictionary, 3d ed. — and adopts instead an approach that either reads “refuse” out of the Act altogether, or gives to it a tortured meaning. The Court declares, at one point, that “The word ‘refuse’ includes all foreign substances and pollutants apart from those ‘flowing from streets and sewers and passing therefrom in a liquid state’ into the watercourse.” Ante, p. 230. Thus, dropping anything but pure water into a river would appear to be a federal misdemeanor. At the same time, the Court also appears to endorse the Second Circuit’s somewhat narrower view that “refuse matter” refers to any material, however valuable, which becomes unsalvageable when introduced into the water. Ante, pp. 229-230. On this latter approach, the imposition of criminal penalties would in effect depend in each instance on a prospective estimate of salvage costs. Such strained definitions of a phrase that is clear as a matter of ordinary English hardly commend themselves, and at the very least raise serious doubts as to the intended reach of § 13.

II.

Given these doubts as to the proper construction of “refuse matter” in § 13, we must reckon with a traditional canon that a penal statute will be narrowly construed. See II Hale, Historia Placitorum Coronae 335 (1736); United States v. Wiltberger, 5 Wheat. 76, 95. The reasons underlying this maxim are various. It appears likely that the rule was originally adopted in order to spare people from the effects of exceedingly harsh penalties. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 (1935). Even though this rationale might be thought to have force were the defendant a natural person, I cannot say that it is particularly compelling in this instance where the maximum penalty to which Standard Oil might be subject is a fine of $2,500. 33 U. S. C. § 411 (1964 ed.).

A more important contemporary purpose of the notion of strict construction is to give notice of what the law is, in order to guide people in their everyday activities. Again, however, it is difficult to justify a narrow reading of § 13 on this basis. The spilling of oil of any type into rivers is not something one would be likely to do whether or not it is legally proscribed by a federal statute. A broad construction would hardly raise dangers of penalizing people who have been innocently pouring valuable oil into navigable waters, for such conduct in Florida is unlawful whatever the effect of § 13. A Florida statute penalizing as a misdemeanor the depositing into waters within the State of “any rubbish, filth, or poisonous or deleterious substance or substances, liable to affect the health of persons, fish, or live stock . . . ,” Fla. Stat. Ann., §387.08 (1960 ed.), quite evidently reaches the dumping of commercial oil. And Florida’s nuisance law would likewise seem to make this conduct actionable in equity. See, e. g., The Ferry Pass Inspectors’ & Shippers’ Assn. v. The Whites River Inspectors’ & Shippers’ Assn., 57 Fla. 399, 48 So. 643. Finally, as noted earlier, ante, p. 229, n. 5, prior decisions by some lower courts have held § 13 applicable to spillage of oil. For these reasons this justification for the canon of strict construction is not persuasive in this instance.

There is, however, a further reason for applying a seemingly straightforward statute in a straightforward way. In McBoyle v. United States, 283 U. S. 25, this Court held that a statute making it a federal crime to move a stolen “motor vehicle” in interstate commerce did not apply to a stolen airplane. That too was a case in which precise clarity was not required in order to give due warning of the line between permissible and wrongful conduct, for there could not have been any question but that stealing aircraft was unlawful. Nevertheless, Mr. Justice Holmes declared that “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” 283 U. S., at 27. The policy thus expressed is based primarily on a notion of fair play: in a civilized state the least that can be expected of government is that it express its rules in language all can reasonably be expected to understand. Moreover, this requirement of clear expression is essential in a practical sense to confine the discretion of prosecuting authorities, particularly important under a statute such as § 13 which imposes criminal penalties with a minimal, if any, scienter requirement.

In an area in which state or local law has traditionally regulated primary activity, there is good reason to restrict federal penal legislation within the confines of its language. If the Federal Government finds that there is sufficient obstruction or pollution of navigable waters caused by the introduction of commercial oil or other nonrefuse material, it is an easy matter to enact appropriate regulatory or penal legislation. Such legislation can be directed at specific types of pollution, and the remedies devised carefully to ensure compliance. Indeed, such a statute was enacted in 1924 to deal with oil pollution in coastal waters caused by vessels, 43 Stat. 605, 33 U. S. C. §§ 433, 434 (1964 ed.).

To conclude that this attempted prosecution cannot stand is not to be oblivious to the importance of preserving the beauties and utility of the country’s rivers. It is simply to take the statute as we find it. I would affirm the judgment of the District Court.

       30 Stat. 1152, 33 U. S. C. §407 (1964 ed.).

       A man whose “fault was an almost superstitious reverence for the dark technicalities of special pleading.” XV Dictionary of National Biography, p. 226 (Stephen and Lee ed. 1937-1938).

       The District Court followed the decision of the United States District Court in United States v. The Delvalle, 45 F. Supp. 746, 748, where it was said: “The accidental discharge of valuable, usable oil . . . does not constitute ... a violation of the statute.” (Emphasis added.)

       The codification did not include the Acts of 1886 and 1888 which pertained only to New York. These remain in effect and are found at 33 U. S. C. §§441-451 (1964 ed.). The New York Harbor statute has been held to apply not only to waste oil which was unintentionally discharged (The Albania, 30 F.2d 727) but also to valuable oil negligently discharged. The Colombo, 42 F. 2d 211.

       The decisions in the instant case below and in United States v. The Delvalle, supra, n. 3, are against the stream of authority. An unreported decision of a United States District Court in 1922 (United States v. Crouch), holding § 13 inapplicable to polluting but nonobstructing deposits, caused the Oil Pollution Act, 1924, 43 Stat. 604, 33 U. S. C. §431 et seq. (1964 ed.), to be passed. See S. Rep. No. 66, 68th Cong., 1st Sess.; H. R. Rep. No. 794, 68th Cong., 1st Sess. It is applicable to the discharge of oil by vessels into coastal waters but not to deposits into inland navigable waters; and it explicitly provides that it does not repeal or modify or in any manner affect other existing laws. 33 U. S. C. §437 (1964 ed.).

       “Having dealt with the construction placed by the court below upon the Sherman Act, our jurisdiction on this appeal is exhausted. We are not at liberty to consider other objections to the indictment or questions which may arise upon the trial with respect to the merits of the charge. For it is well settled that where the District Court has based its decision on a particular construction of the underlying statute, the review here under the Criminal Appeals Act is confined to the question of the propriety of that construction.” United States v. Borden Co., 308 U. S. 188, 206-207.

       Rivers and Harbors Act of 1899, § 15, 30 Stat. 1152, 33 U. S. C. § 409 (1964 ed.).

       Rivers and Harbors Act of 1899, § 14, 30 Stat. 1152, 33 U. S. C. §408 (1964 ed.).

       Rivers and Harbors Act of 1899, § 12, 30 Stat. 1151, 33 U. S. C. §406 (1964 ed.).

       Congress was presented, when considering one of the predecessors of the 1899 Act, with the representations of the Office of the Chief of Army Engineers that there had been “serious injury to navigable waters by the discharge of sawmill waste into streams .... In fair-ways of harbors, channels are injured from deposits of ballast, steam-boat ashes, oysters, and rubbish from passing vessels.” S. Rep. No. 224, 50th Cong., 1st Sess., 2 (1888). See also H. R. Rep. No. 1826, 55th Cong., 3d Sess., 3-4 (1899). There is no support for the proposition that these statutes were directed at “pollution” independently of “obstruction.”

       The minimum sentence for an individual convicted of violating § 13 is a $500 fine or 30 days’ imprisonment, not an insignificant penalty for accidentally dropping foreign matter into a river. 33 U. S. C. §411 (1964 ed.).

       The parties were not in agreement as to what scienter requirement the statute imposes. This question is not before us under the restricted jurisdiction granted to this Court under 18 U. S. C. § 3731 (1964 ed.), see United States v. Petrillo, 332 U. S. 1; United States v. Borden Co., 308 U. S. 188, and the Court today intimates no views on the question.

       Besides the Florida pollution statute adverted to earlier, Fla. Stat. Ann., §387.08 (1960 ed.), the*city of Jacksonville has enacted ordinances dealing generally with fire prevention, Jacksonville Ordinance Code §§19-4.1 to 19-4.24 (1958 Supp.), disposal of waste material, §21-12 (1958 Supp.), and pollution of the city water supply, §27-52 (1953 Code).

       See, e. g., special message of the President dealing with new antipollution legislation, Preservation of Our Natural Heritage — Message from the President of the United States, H. Doc. No. 387, 89th Cong., 2d Sess., Cong. Rec., Feb. 23, 1966, pp. 3519-3522.


author: Mr. Justice Douglas Mr. Justice White,

text:
    BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES, AFL-CIO, et al. v. FLORIDA EAST COAST RAILWAY CO.
    No. 750.
    Argued April 20, 1966.
    Decided May 23, 1966.

      Neal Rutledge argued the cause for petitioners 'in No. 750. With him on the briefs were Lester P. Schoene and Allan Milledge.

      Paul Bender argued the cause for the United States in Nos. 782 and 783, pro hoc vice, by special leave of Court. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Douglas and David L. Rose.

      William B. Devaney argued the cause for respondent in Nos. 750 and 782, and for petitioner in No. 783. With him on the briefs was George B. Mickum III.

    Briefs of amici curiae, urging reversal, were filed by Gregory S. Prince, Jonathan C. Gibson and C. George Niebank, Jr., for the Association of American Railroads, and by Clarence M. Mulholland, Edward J. Hickey, Jr., and James L. Highsaw, Jr., for the Railway Labor Executives’ Association.

      Together with No. 782, United States v. Florida East Coast Railway Co., and No. 783, Florida East Coast Railway Co. v. United States, also on certiorari to the same court.

   Mr. Justice Douglas

delivered the opinion of the Court.

This controversy started with a union demand on behalf of the nonoperating employees for a general 25-cent-per-hour wage increase and a requirement of six months’ advance notice of impending layoffs and abolition of job positions. The demand was made of virtually all Class I railroads, including Florida East Coast Railway Co. (hereinafter called FEC). The dispute underwent negotiations and mediation as required by the Railway Labor Act. When those procedures proved unsuccessful, a Presidential Emergency Board was created under § 10 of the Act, which after hearings recommended a general pay increase of about 10 cents per hour and a requirement of at least five days’ notice before job abolition. In June 1962, this settlement was accepted by all the carriers except FEC. Thereupon, further mediation was invoked under the Act but again no settlement was reached. The Act makes no provision for compulsory arbitration. Section 5 First does, however, provide for voluntary arbitration at the suggestion of the National Mediation Board. The suggestion was made but both the unions and FEC refused. Further negotiations were unsuccessful and on January 23, 1963, the nonoperating unions struck. When that happened, most operating employees refused to cross the picket lines.

FEC shut down for a short period; and then on February 3, 1963, resumed operations by employing supervisory personnel and replacements to fill the jobs of the strikers and of those operating employees who would not cross the picket lines. FEC made individual agreements with the replacements concerning their rates of pay, rules and working agreements on terms substantially different from those in the outstanding collective bargaining agreements with the various unions. Thereafter, FEC proposed formally to abolish all the existing collective bargaining agreements and to substitute another agreement -that would make rather sweeping departures in numerous respects from the existing collective bargaining agreements. Negotiations between FEC and the unions broke down. The unions then invoked the mediation services of the National Mediation Board relative to the proposed changes, but the carrier refused. The unions thereafter agreed to submit the underlying dispute — the one concerning wages and notice — to arbitration. But FEC refused arbitration and shortly thereafter established another new agreement by unilateral action and operated under it until the present action was instituted by the United States in 1964 — a suit charging that the unilateral promulgation of the new agreement violated the Act. The nonoperating unions intervened as plaintiffs and hearings were held. Meanwhile, the Court of Appeals decided Florida East Coast R. Co. v. Brotherhood of R. Trainmen, 336 F. 2d 172, a parallel injunctive suit brought against FEC by an operating union and similarly complaining of FEC’s unilateral promulgation of the new agreement. That court held that FEC had violated the Act by its unilateral abrogation of the existing collective bargaining agreements. It ruled, however, that FEC could unilaterally institute such changes in its existing agreements as the District Court found to be “reasonably necessary to effectuate its right to continue to run its railroad under the strike conditions.” 336 F. 2d, at 182. The District Court thereafter entered injunctions in the Trainmen case, and in the present case, requiring FEC to abide by all the rates of pay, rules, and working conditions specified in the existing collective bargaining agreements until the termination of the statutory mediation procedure “except upon specific authorization of this Court after a finding of reasonable necessity therefor upon application of the FEC to this Court.”

Thereupon FEC filed an application for approval of some departures from its existing agreements with its nonoperating unions. The District Court, after hearings, granted some requests and denied others. Thus it permitted FEC to exceed the ratio of apprentices to journeymen and age limitations established by the collective bargaining agreements, to contract out certain work, and to use supervisory personnel to perform certain specified jobs where it appeared that trained personnel were unavailable. The District Court denied FEC’s request that it be permitted to disregard completely craft and seniority district restrictions, that it be allowed to use supervisors to perform craft work whenever it desired, that it be relieved of the duty to provide seniority rosters,, that it be permitted to contract out work whenever trained personnel were unavailable, and that the union shop be declared void and unenforceable as to employees hired after January 23, 1963. Both sides appealed. The Court of Appeals affirmed on the basis of its decision in the Trainmen case. 348 F. 2d 682. The unions, the United States, and FEC each petitioned for a writ of certiorari which we granted. 382 U. S. 1008.

The controversy centers around § 2 Seventh of the Act, which provides:

“No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.”

The demand for a 25-cent-per-hour wage increase and for six months’ advance notice of impending layoffs and job abolitions was a major dispute covered by § 2 Seventh (Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 723) and it had proceeded through all the major dispute procedures required by the Act without settlement. The unions, having made their demands and having exhausted all the procedures provided by Congress, were therefore warranted in striking. For the strike has been the ultimate sanction of the union, compulsory arbitration not being provided.

At that juncture self-help was also available to the carrier as we held in Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U. S. 284; 291: “. . . both parties, having exhausted all of the statutory procedures, are relegated to self-help in adjusting this dispute . . . .”

The carrier’s right of self-help is underlined by the public service aspects of its business. “More is involved than the settlement of a private controversy without appreciable consequences to the public.” Virginian Ry. v. Federation, 300 U. S. 515, 552. The Interstate Commerce Act, 24 Stat. 379, as amended, places a responsibility on common carriers by rail to provide transportation. The duty runs not to shippers alone but to the public. In our complex society, metropolitan areas in particular might suffer a calamity if rail service for freight or for passengers were stopped. Food and other critical supplies might be dangerously curtailed; vital services might be impaired; whole metropolitan communities might be paralyzed.

We emphasize these aspects of the problem not to say that the carrier’s duty to operate is absolute, but only to emphasize that it owes the public reasonable efforts to maintain the public service at all times, even when beset by labor-management controversies and that this duty continues even when all the mediation provisions of the Act have been exhausted and self-help becomes available to both sides of the labor-management controversy.

If all that were involved were the pay increase and the notice to be given on layoffs or job abolition, the problem would be simple. The complication arises because the carrier, having undertaken to keep its vital services going with a substantially different labor force, finds it necessary or desirable to make other changes in the collective bargaining agreements. Thus we find FEC in this case anxious to exceed the ratio of apprentices to journeymen and the age limitations in the collective bargaining agreements, to make changes in the contracting-out provisions, to disregard requirements for trained personnel, to discard craft and seniority restrictions, the union shop provision, and so on. Each of these technically is included in the words “rules, or working conditions of its employees, as a class as embodied in agreements” within the meaning of § 2 Seventh of the Act. It is, therefore, argued with force that each of these issues must run the same gantlet of negotiation and mediation, as did the pay and notice provisions that gave rise to this strike.

The practical effect of that conclusion would be to bring the railroad operations to a grinding halt. For the procedures of the Act are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute. If, therefore, § 2 Seventh is applicable after a lawful strike has been called and after lawful self-help has been invoked by the carrier, the right of self-help might well become unilateral to the workers alone, and denied the carrier. For when a carrier improvises and employs an emergency labor force it may or may not be able to comply with the terms of a collective bargaining agreement, drafted to meet the sophisticated requirements of a trained and professional labor force. The union remains the bargaining representative of all the employees in the designated craft, whether union members or not. Steele v. Louisville & N. R. Co., 323 U. S. 192. All these employees of the railroad are entitled to the benefits of the collective bargaining agreement, and the carrier may not supersede the agreement by individual contracts even though particular employees are willing to enter into them. See Telegraphers v. Ry. Express Agency, 321 U. S. 342, 347. But when a strike occurs, both the carrier’s right of self-help and its duty to operate, if reasonably possible, might well be academic if it could not depart from the terms and conditions of the collective bargaining agreement without first following the lengthy course the Act otherwise prescribes.

At the same time, any power to change or revise the basic collective agreement must be closely confined and supervised. These collective bargaining agreements are the product of years of struggle and negotiation; they represent the rules governing the community of striking employees and the carrier. That community is not destroyed by the strike, as the strike represents only an interruption in the continuity of the relation. Were a strike to be the occasion for a carrier to tear up and annul, so to speak, the entire collective bargaining agreement, labor-management relations would revert to the jungle. A carrier could then use the occasion of a strike over a simple wage and hour dispute to make sweeping changes in its work-rules so as to permit operation on terms which could not conceivably have been obtained through negotiation. Having made such changes, a carrier might well have little incentive to reach a settlement of the dispute that led to the strike. It might indeed have a strong reason to prolong the strike and even break the union. The temptation might be strong to precipitate a strike in order to permit the carrier to abrogate the entire collective bargaining agreement on terms most favorable to it. The processes of bargaining and mediation called for by the Act would indeed become a sham if a carrier could unilaterally achieve what the Act requires be done by the other orderly procedures.

While the carrier has the duty to make all reasonable efforts to continue its operations during a strike, its power to make new terms and conditions governing the new labor force is strictly confined, if the spirit of the Railway Labor Act is to be honored. The Court of Appeals used the words “reasonably necessary.” We do not disagree, provided that “reasonably necessary” is construed strictly. The carrier must respect the continuing status of the collective bargaining agreement and make only such changes as are truly necessary in light of the inexperience and lack of training of the new labor force or the lesser number of employees available for the continued operation. The collective bargaining agreement remains the norm; the burden is on the carrier to show the need for any alteration of it, as respects the new and different class of employees that it is required to employ in order to maintain that continuity of operation that the law requires of it.

Affirmed.

Mr. Justice Fortas took no part in the consideration or decision of these cases.

Mr. Justice White,

dissenting.

The Act provides that until bargaining procedures are exhausted there shall be neither strikes nor changes in the contract. Section 2 Seventh (45 U. S. C. § 152 Seventh (1964 ed.)); § 5 First (45 U. S. C. § 155 First (1964 ed.)); § 6 (45 U. S. C. § 156 (1964 ed.)). Here, bargaining was exhausted only on wages and notice of layoffs and job abolition. At that point the union was free to strike and the carrier to make such changes as had been bargained for. The carrier was free to operate, if it could, but in my view only under the terms of the existing collective bargaining contract as modified with respect to those subjects on which the Act’s procedures had been followed.

The Court agrees that § 2 Seventh forbids the carrier itself to make any changes in the contract other than those on which bargaining has taken place, regardless of how necessary these changes are to the successful operation of the railroad. But with the consent of a United States court, or a state court for that matter, the carrier may now make any change essential to its continued operation. Although the union remains the bargaining agent for all employees, strikers and replacements alike, Steele v. Louisville & N. R. Co., 323 U. S. 192, the carrier need not bargain with it, but with the court, if it wants to make changes which the Act forbids it to make alone. The union is free to strike and thereby to attempt to halt the operation of the railroad; but if it does, the court may — indeed, it must in some circumstances — permit the railroad to make any change in wages, hours and working conditions which is necessary to obviate the normal consequences of the strike. I fail to see how this exception can be read into the unequivocal language of § 2 Seventh.

This is very close to a judgment that there shall be no strikes in the transportation business, a judgment which Congress rejected in drafting the Railway Labor Act. True, the Act was designed to maximize settlements and minimize strikes, but Congress stopped short of imposing compulsory arbitration, the most obvious technique to insure the settlement of disputes and to prevent strikes. § 5, 45 U. S. C. § 155 (1964 ed.). Certainly it was not anticipated that a struck railroad could invoke the aid of the court to make changes in a contract which Corgress had forbidden it to make. Nor did Congress anticipate what is in effect a new type of railroad receivership designed to last as long as necessary to blunt the effectiveness of a strike which the Act left the union free to call. Had Congress impressed upon the railroads an absolute duty to continue operating while struck, perhaps an implied exception to § 2 Seventh might be warranted. But, as the majority recognizes, no such duty has been placed on the railroads.

Of course the railroad was free to operate, but the Congress specified in § 2 Seventh the terms on which it might do so. To change those terms is a task for Congress, not for a federal or a state court.

       § 6, 44 Stat. 582, as amended, 48 Stat. 1197, 45 U. S. C. § 156 (1964 ed.); § 5 First, 44 Stat. 580, as amended, 48 Stat. 1195, 45 U. S. C. § 155 First (1964 ed.).

       44 Stat. 586, as amended, 48 Stat. 1197, 45 U. S. C. §160 (1964 ed.).

       44 Stat. 580, as amended, 48 Stat. 1195, 45 U. S. C. § 155 First (1964 ed.).

       We have no doubt that the United States had standing to bring this action. Section 2 Tenth, 48 Stat. 1189, 45 U. S. C. § 152 Tenth (1964 ed.), makes it the duty of the United States attorney to “institute in the proper court and to prosecute ... all necessary proceedings for the enforcement” of § 2 (emphasis added) which FEC is here charged with violating. See United States v. Republic Steel Corp., 362 U. S. 482, 491-492.

       48 Stat. 1188, 45 U. S. C. §152 Seventh (1964 ed.).

       49 U. S. C. § 1 (4) (1964 ed.) provides in part:
      “It shall be the duty of every common carrier subject to this chapter to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; . . .”
      49 U. S. C. §1 (11) (1964 ed.) provides in part:
      “It shall be the duty of every carrier by railroad subject to this chapter to furnish safe and adequate car service and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect to car service; . . .”
      49 U. S. C. §8 (1964 ed.) provides in part:
      “In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter . . . .”

       In this connection, it bears emphasis that the District Court’s authorization to deviate in part from the collective bargaining agreement would, as FEC readily concedes, terminate at the conclusion of the strike. At that time, the terms of the earlier collective bargaining agreement, except as modified by any new agreement of the parties, would be fully in force.

       If FEC had precipitated the strike by refusing to arbitrate, then it would be barred by Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50, from obtaining injunctive relief in the courts since it would have failed to make “every reasonable effort” to settle the dispute within the meaning of §8 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U. S. C. § 108 (1964 ed.). And we assume that seeking relief from provisions of the collective bargaining agreements would have fallen under the same ban. But in the instant ease both FEC and the unions refused voluntary arbitration and the strike followed. Later the unions changed their mind and agreed to arbitration, FEC refusing. But by then the strike was on and the right to “self-help” had accrued. If an issue concerning the good faith of a party in refusing a pre-strike opportunity to arbitrate were presented, different considerations would apply.
      Moreover, since the justification for permitting the carrier to depart from the terms of the collective bargaining agreement lies in its duty to continue to serve the public, a district court called upon to grant a carrier’s relief from provisions of the collective bargaining agreement should satisfy itself that the carrier is engaged in a good-faith effort to restore service to the public and not, e. g., using the strike to curtail that service.

       Congress has generally entrusted the specialized and unique affairs of the railroad industry to a few expert boards and agencies. Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 752 (Frankfurter, J., dissenting). Permitting the wholesale intervention of the courts in this manner seems inconsistent with these congressional policies of uniformity and expert supervision. Cf. Labor Board v. Brown, 380 U. S. 278, 299 (White, J., dissenting); American Ship Building Co. v. Labor Board, 380 U. S. 300, 325-327 (White, J., concurring).

       It is certainly questionable whether the procedures approved by the majority will minimize strikes or maximize settlements. This particular strike is one of the longest in railroad history. There can be no doubt that the procedures followed in this case have helped prolong the strike. For example, in part because of these procedures, Florida East Coast enjoyed a substantial increase in its operating profits during the strike period. See Brief for Government, p. 8, n. 7.

       Cf. § 77 (n) of the Bankrupcty Act, 11 U. S. C. § 205 (n) (1964 ed.), which provides “No judge or trustee acting under this title shall change the wages or working conditions of railroad employees except in the manner prescribed in the Railway Labor Act . . . .” Burke v. Morphy, 109 F. 2d 572.


author: Mr. Justice Harlan

text:
    UNITED STATES v. BLUE.
    No. 531.
    Argued April 21, 1966.
    Decided May 23, 1966.

      Solicitor General Marshall argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Roberts, Nathan Lewin and Joseph M. Howard.

      Ernest R. Mortenson argued the cause and filed a brief for appellee.
   Mr. Justice Harlan

delivered the opinion of the Court.

In 1962 the appellee, Ben Blue, was informed by the Internal Revenue Service that he might be criminally prosecuted for violation of the federal income tax laws. The following year the Service made jeopardy assessments against Blue, his wife, and his wholly owned corporation for tax liability for the years 1958 to 1960 inclusive; the known assets of all three were seized and tax liens recorded. Internal Revenue Code of 1954, §§ 6321-6323, 6331, 6861. Statutory notices were then issued giving Blue 90 days within which to file petitions if he wished to contest the proposed deficiencies in the Tax Court, I. R. C. §6213, and Blue filed petitions setting forth his position and alleging errors in the Commissioner’s determination of deficiencies. More than a year later the Government initiated the present criminal case by a six-count indictment charging Blue with wilfully attempting to evade personal income taxes for the years 1958 through 1960 and with filing false returns for his corporation during the same years. I. R. C. §§ 7201, 7206 (1).

Blue filed a pretrial motion seeking dismissal of the indictment on several grounds. After a hearing the District Court granted the motion. The court stated orally that because of the jeopardy assessment and Tax Court proceeding Blue “has been compelled and will be compelled to come forward on the same matters as are concerned in this criminal case, to testify against himself . ...” The Government filed a notice of appeal and the case was docketed in the Court of Appeals for the Ninth Circuit. Determining that the District Court had sustained a “motion in bar, when the defendant has not been put in jeopardy” so that a direct appeal lay to this Court, the Court of Appeals certified the case to us, 350 F. 2d 267, and we postponed jurisdiction, 382 U. S. 971. We agree that this Court has jurisdiction over the appeal and, on the merits, reverse the decision of the District Court.

Since Blue had not yet been brought to trial and put in jeopardy when dismissal occurred, see United States v. Celestine, 215 U. S. 278, 283, our jurisdiction under the statute is secure if the motion sustained by the District Court was a motion in bar. See, supra, n. 2. This in turn depends on “the effect of the ruling sought to be reviewed,” United States v. Hark, 320 U. S. 531, 536, and not on how the pleading is styled or on whether it is ultimately sustained on appeal. Like the Court of Appeals, we take the dismissal in this case as a ruling that absent reversal on review future prosecution of Blue on the pending counts is forever barred. While there are slight ambiguities in language, the District Court’s dismissal was grounded in what it found to be past compulsory self-incrimination and in its apparent belief that this mischief could not be undone save by turning back the clock through ending the prosecution.

Because the dismissal by its own force would “end the cause and exculpate the defendant,” United States v. Hark, 320 U. S., at 536, rather than merely abate the prosecution on account of some normally curable defect, one requisite of a motion in bar is met. Whether it is a further requisite that the motion introduce “new matter” in the fashion of a plea by way of confession and avoidance need not here be decided. See United States v. Mersky, 361 U. S. 431, 441, 453 (separate opinions disagreeing on this point). For in this instance Blue unquestionably relied on new matter in alleging self-incrimination, so the motion qualifies even under the more stringent definition. Thus under either view of a motion in bar taken in Mersky, this case qualifies for direct review. Our conclusion on the jurisdictional issue is further supported by two analogous decisions of this Court treating claims of statutory immunity as pleas in bar which permitted direct appeal. United States v. Hoffman, 335 U. S. 77; United States v. Monia, 317 U. S. 424.

On the merits of the case, we do not believe that the District Court should have dismissed the indictment. The Government has argued that the statements made by Blue in his Tax Court petitions were no more than successive denials of the alleged underpayments and do not constitute incriminating evidence. The Government has also intimated that by merely providing the occasion for the filing of Blue’s petitions in fulfilling its statutory duty to make jeopardy assessments and send deficiency notices, it ought not be regarded as compelling the taxpayer to incriminate himself within the meaning of the Fifth Amendment. There is no need, however, to consider these or other contentions that may point in the same direction.

Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. While the general common-law practice is to admit evidence despite its illegal origins, this Court in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused’s rights under the Constitution, federal statutes, or federal rules of procedure. Weeks v. United States, 232 U. S. 383; Rogers v. Richmond, 365 U. S. 534; Mapp v. Ohio, 367 U. S. 643; Nardone v. United States, 308 U. S. 338; Mallory v. United States, 354 U. S. 449. Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.

We remand this case to the District Court to proceed on the merits, leaving Blue free to pursue his Fifth Amendment claim through motions to suppress and objections to evidence. It is not entirely clear from Blue’s brief and argument whether he seeks to sustain the dismissal below on other grounds that the District Court did not accept. See, supra, n. 1. Putting to one side jurisdictional difficulties this course might encounter under the direct-review statute, we believe it is fairer to all to regard no other grounds as presented, thus reserving to Blue the opportunity to articulate them plainly and support them by the record.

Reversed and remanded.

       The court stated that it based the dismissal “on that ground alone.” It rejected a claim that the seizure of property and recording of tax liens had prevented Blue from preparing an adequate defense by depleting his resources. It did not expressly consider Blue’s claim that there is an administrative practice of making no assessments in advance of criminal proceedings and that failure to extend the policy to him was a denial of due process.

       18 U. S. C. §3731 (1964 ed.) provides in part:
      “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
      “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.
      “If an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court of the United States, such court shall certify the case to the Supreme Court of the United States, which shall thereupon have jurisdiction to hear and determine the case to the same extent as if an appeal had been taken directly to that Court.”

       It does not seem to be contended that tainted evidence was presented to the grand jury; but in any event our precedents indicate this would not be a basis for abating the prosecution pending a new indictment, let alone barring it altogether. See Costello v. United States, 350 U. S. 359; Lawn v. United States, 355 U. S. 339; 8 Wigmore, Evidence § 2184a, at 40 (McNaughton rev. 1961).

       See Stern & Gressman, Supreme Court Practice §2-11, at 31-33 (1962); Friedenthal, Government Appeals in Federal Criminal Cases, 12 Stan. L. Rev. 71, 97-100 (1959).


author: Mr. Justice White

text:
    UNITED STATES v. COOK.
    No. 256.
    Argued April 19, 1966.
    Decided May 23, 1966.

      Jerome M. Feit argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson and Beatrice Rosenberg.

      Thomas H. Peebles III argued the cause and filed a brief for appellee, pro hac vice, by special leave of Court.
   Mr. Justice White

delivered the opinion of the Court.

The question presented is whether 18 U. S. C. § 660 (1964 ed.), which prohibits certain embezzlements by employees of “any firm, association, or corporation engaged in commerce as a common carrier,” applies to the conduct of an employee of an individual doing business as a common carrier. The indictment in this case charged that, while riding on his employer’s truck, appellee, “a truck driver for Tolbert Hawkins, an individual engaged in commerce as a common carrier,” embezzled approximately $200 from funds of his employer accruing from an interstate shipment of bananas. Holding that the indictment failed to charge an offense within § 660 because it charged that appellee acted as an employee of “an individual” while § 660 forbids the proscribed acts only when committed by employees of a “firm, association, or corporation,” the District Court dismissed the indictment. Accord, Schmokey v. United States, 182 F. 2d 937 (C. A. 10th Cir. 1950). The United States brought a direct appeal pursuant to 18 U. S. C. § 3731 (1964 ed.), and we noted probable jurisdiction, 382 U. S. 953.

Section 660 punishes embezzlements from a common carrier by either (1) “a president, director, officer, or manager of any firm, association, or corporation engaged in commerce as a common carrier,” or (2) “an employee of such common carrier riding in or upon any . . . vehicle of such carrier moving in interstate commerce.” The present form of the statute dates from the 1948 revision of the Criminal Code. Prior to that time, the separate groups — named executives, and employees riding in vehicles in commerce — were the subject of distinct criminal provisions. 18 U. S. C. §412 (1946 ed.), like the present § 660, applied to named executives of “any firm, association, or corporation engaged in commerce as a common carrier.” 18 U. S. C. § 409 (a)(5) (1946 ed.) applied to employees of “any carrier,” with no express limitation relating to the form of the employer’s ownership. The legislative history — including a 1946 revision expanding the coverage of the section to all modes of transportation — and the prevalent usage of the expression “any carrier” in statutes regulating commerce convincingly establish that § 409 (a)(5) embraced employees of individual proprietorships. As this much is conceded by appellee, we need not detail that legislative history and common usage here. Appellee urges, however, that the phrase “firm, association, or corporation” absorbed into § 660 from the earlier executive provision, § 412, is not sufficiently broad to include individual proprietors; that the revision in 1948 therefore narrowed the coverage of the employee provision; and that this result is compelled by the general canon of construction that criminal statutes are to be strictly construed. The United States counters that the choice of the language used in the predecessor executive provision, rather than that in the predecessor employee provision, was merely a stylistic preference not evidencing any intent to narrow coverage of employee offenders and that a “firm” may be any business organization, whether individually owned or otherwise.

We think the position of the United States is sound and we reverse the District Court. There is no doubt that the 1946 statute covered employees of individuals and in our view it was not intended by adopting the 1948 revision of the Code to make any substantive change in the law by excluding from its coverage the employees of any class of carrier who had been previously covered. The general purpose of the new Code was to “codify and revise .... The original intent of Congress is preserved,” S. Rep. No. 1620, 80th Cong., 2d Sess., p. 1, and with respect to the new § 660, the reviser’s note, while noting the consolidation of a portion of § 409 and § 412 and stating that “[c]hanges were made in phraseology,” disclosed no intention of making any change in the substantive content or the coverage of the law. See legislative history note following 18 U. S. C. § 660 (1964 ed.). To us the congressional intent to reach the employees of any carrier, whatever the form of business organization, seems reasonably clear.

Appellee relies principally upon the abandonment of the words “employee of any carrier” and the substitution of the present language of § 660 which does not expressly include the employees of “any person” or “any individual” doing business as a common carrier. But the term “firm” is certainly broad enough in common usage to embrace individuals acting as common carriers; and in those instances where Congress has explicitly-indicated its understanding of the term, the definition of “firm” has included individual proprietorships. 19 U. S. C. § 1806 (3) (1964 ed.); 19 U. S. C. § 2022(0(3) (1964 ed., Supp. I).

Nor has any plausible reason been advanced for drawing a distinction between employees of individuals and employees of partnership or corporate common carriers. The possible burden to interstate commerce or the need for federal jurisdiction to supplement state jurisdiction — in view of the frequent difficulty of showing in what State the crime occurred- — does not vary with the form of business organization. On the other hand, since a large portion of common carriers are individually owned proprietorships, acceptance of appellee’s interpretation of § 660 would exclude a substantial segment of the industry from the coverage of the Act — a result that should not be inferred from the 1948 “changes ... in phraseology” without some specific indication that Congress had receded from the intention it clearly expressed in 1946 of expanding coverage of the Act to all carriers. See S. Rep. No. 1632, 79th Cong., 2d Sess.

We are mindful of the maxim that penal statutes should be strictly construed. But that canon “is not an inexorable command to override common sense and evident statutory purpose,” United States v. Brown, 333 U. S. 18, 25, and does not “require that the act be given the ‘narrowest meaning.’ It is sufficient if the words are given their fair meaning in accord with the evident intent of Congress.” United States v. Raynor, 302 U. S. 540, 552; see also United States v. Bramblett, 348 U. S. 503; United States v. A & P Trucking Co., 358 U. S. 121; United States v. Shirey, 359 U. S. 255. In this case the fair meaning of the term in dispute — as evidenced by common usage and its statutory meaning in other contexts — and the manifest intention of Congress in using it here lead us to conclude that § 660 encompasses embezzlements by employees of individual proprietorships.

Reversed.

       “Whoever, being a president, director, officer, or manager of any firm, association, or corporation engaged in commerce as a common carrier, or whoever, being an employee of such common carrier riding in or upon any railroad car, motortruck, steamboat, vessel, aircraft or other vehicle of such carrier moving in interstate commerce, embezzles, steals, abstracts, or willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, securities, property, or assets of such firm, association, or corporation arising or accruing from, or used in, such commerce, in whole or in part, or willfully or knowingly converts the same to his own use or to the use of another, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” 18 U. S. C. § 660 (1964 ed.).

       See n. 1, supra.

       “Every president, director, officer, or manager of any firm, assocition, or corporation engaged in commerce as a common carrier, who embezzles, steals, abstracts, or willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, securities, property, or assets of such firm, association, or corporation arising or accruing from, or used in', such commerce, in whole or in part, or willfully or knowingly converts the same to his own use or to the use of another, shall be deemed guilty of a felony and upon conviction shall be fined not less than $500, or confined in the penitentiary not less than one year nor more than ten years, or both, in the discretion of the court.” Act of Oct. 15, 1914, § 9, 38 Stat. 733, 18 U. S. C. §412 (1946 ed.).

       “(a) Whoever shall—
      “(5) being an employee of any carrier riding in, on or upon any railroad car, motortruck, steamboat, vessel, aircraft, or other vehicle of such carrier transporting passengers or property in interstate or foreign commerce and having in his custody funds arising out of or accruing from such transportation, embezzle or unlawfully convert to his own use any such funds; shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both.” Act of Feb. 13, 1913, 37 Stat. 670, as amended, 18 U. S. C. §409 (a)(5) (1946 ed.).

       Some sources define “firm” as “[t]he persons composing a partnership, taken collectively.” II Bouvier’s Law Dictionary 1232 (1914); see also Ballentine’s Law Dictionary 507 (2d ed. 1948); Black’s Law Dictionary 761-762 (4th ed. 1951); Crowell’s Dictionary of Business and Finance 225 (rev. ed. 1930); Encyclopedia of Banking and Finance 238 (Garcia, 5th ed. 1949). But other dictionaries, while recognizing that narrow definition, also state that the word has a broader meaning in popular usage, connoting any business entity, including individual proprietorships. For example, the standard American reference defines “firm” both as “a partnership of two or more persons not recognized as a legal person distinct from the members composing it” and as any “business unit or enterprise.” Webster’s Third New International Dictionary — Unabridged 856 (1961). Accord, Clark & Gottfried, Dictionary of Business and Finance 152 (1957) (“Strictly, an unincorporated business carried on by more than one person, jointly; a partnership. ... In popular usage, any business, company, or concern, incorporated or not.”); Dictionary of Business and Industry 218 (Schwartz ed. 1954) (“A business partnership; any business house or organization, no matter what its legal form . . .”); Dictionary of English Law 807 (1959) (“the style or title under which one or several persons carry on business”); Dictionary of Foreign Trade 308 (Henius, 2d ed. 1947) (“The name or title under which one or more persons do business”).
      While numerous decisions of state courts have enunciated a restrictive definition of “firm” — and in turn have influenced the definition given in law dictionaries, see the citation to Firestone Tire & Rubber Co. v. Webb, 207 Ark. 820, 182 S. W. 2d 941 (1944), in Black’s Law Dictionary, supra — such decisions have not involved the issue of whether an individual proprietorship may be deemed a “firm.” Typically the question has been wiiether two or more persons holding themselves out as a firm should be held to constitute a partnership for various purposes of partnership law such as liability on a partnership note, Firestone Tire & Rubber Co. v. Webb, supra, imputation of knowledge from partners to the partnership, McCosker v. Banks, 84 Md. 292, 35 A. 935 (1896), or liability of one partner for the acts of another, Bufton v. Hoseley, 236 Ore. 12, 386 P. 2d 471 (1963).

       The two provisions are identical and read as follows:
      “The tema 'firm' includes an individual proprietorship, partnership, joint venture, association, corporation (including a development corporation), business trust, cooperative, trastees in bankruptcy, and receivers under decree of any court. . . .”

       A random sampling of 1,500 of 11,700 ICC-certifieated Class III motor carriers of property (i. e., those with an annual revenue of less than $200,000) showed that at the end of 1964 almost 40% were individually owned and operated. About 1% operated in partnership form, and the remainder operated as corporations. Brief of United States 13, n. 8.


author: Per Curiam.

text:
    REDMOND et ux. v. UNITED STATES.
    No. 1056.
    Decided May 23, 1966.

      John Jay Hooker, Jr., for petitioners.

      Solicitor General Marshall for the United States.
   Per Curiam.

The petition for certiorari is granted. The Court of Appeals for the Sixth Circuit affirmed the conviction of petitioners, husband and wife, under an information charging them with violating the federal obscenity statute, 18 U. S. C. § 1461 (1964 ed.), by having mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing, and having recéived through the mails the developed negatives and a print of each.

In response to the certiorari petition, the Solicitor General has filed a motion requesting that the judgment of the Court of Appeals for the Sixth Circuit be vacated and the cause remanded to the District Court with directions to dismiss the information. The ground of the motion is that “the initiation of the instant prosecution was not in accord with policies which had previously been formulated within the Department [of Justice] for the guidance of United States Attorneys.” The policies referred to are set forth in a memorandum to United States Attorneys, dated August 31, 1964. The memorandum states, in pertinent part, that prosecution for mailing private correspondence which is allegedly obscene “should be the exception confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated.” The Solicitor General states that there are no such exceptional circumstances warranting a prosecution of petitioners: “They were not repeated offenders. They had no record of involvement with obscene materials or sex-related offenses and no apparent opportunity for close association with young people. No other aggravating circumstance appears to be present.”

In consideration of the premises and upon an independent examination of the record filed in this Court, the motion is granted. The judgment of the Court of Appeals is accordingly vacated, the cause is remanded to the District Court, and that court is directed to dismiss the information. See Petite v. United States, 361 U. S. 529.

It is so ordered.

Mr. Justice Stewart, with whom Mr. Justice Black and Mr. Justice Douglas concur, would reverse this conviction, not because it violates the policy of the Justice Department, but because it violates the Constitution.


text:
    WYLAN v. CALIFORNIA.
    No. 991.
    Decided May 23, 1966.

      Ronald H. Bonaparte and David A. Binder for appellant.

      Byron B. Gentry for appellee.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Harlan are of the opinion that probable jurisdiction should be noted.


text:
    VENABLE v. TEXAS.
    No. 1196.
    Decided May 23, 1966.

      William VanDercreek for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    DAY et al. v. UNITED STATES et al.
    No. 1086.
    Decided May 23, 1966.

      Edward, J. Hickey, Jr., and James L. Highsaw, Jr., for appellants.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Charles L. Marinaccio, Robert W. Ginnane and Leonard S. Goodman for the United States et al. Charles W. Burkett, Herbert A. Waterman and Randolph Karr for appellee Southern Pacific Co.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    RUTHERFORD v. WASHINGTON.
    No. 1167.
    Decided May 23, 1966.

      Kenneth A. MacDonald for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    COLONIAL PIPELINE CO. v. VIRGINIA.
    No. 985.
    Decided May 23, 1966.

      Ralph H. Ferrell, Jr., John W. Riely and Howard D. McCloud for appellant.

      Robert 7. Button, Attorney General of Virginia, and D. Gardiner Tyler, Assistant Attorney General, for appellee.
   Per Curiam.

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


text:
    LIFE ASSURANCE CO. OF PENNSYLVANIA v. PENNSYLVANIA.
    No. 1152.
    Decided May 23, 1966.

      Harry J. Rubin and Morris J. Dean for appellant.

      Walter E. Alessandroni, Attorney General of Pennsylvania, and George W. Keitel and Eugene J. Anastasio, Deputy Attorneys General, for appellee.
   Per Curiam.

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

Mr. Justice Fortas took no part in the consideration or decision of this case.


text:
    GREER v. BETO, CORRECTIONS DIRECTOR.
    No. 720,
    Misc.
    Decided May 23, 1966.

      William E. Gray for petitioner.

      Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, and Howard M. Fender, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Gideon v. Wainwright, 372 U. S. 335; Doughty v. Maxwell, 376 U. S. 202; see Garner v. Pennsylvania, 372 U. S. 768; United States ex rel. Durocher v. LaVallee, 330 F. 2d 303 (C. A. 2d Cir.).

Mr. Justice Harlan would set the case for argument, believing that the retroactivity of Gideon v. Wainwright, 372 U. S. 335, as applied in a recidivist case, presents problems of its own that are deserving of plenary consideration.