EATON v. PRICE

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Argument of Greene Chandler Furman

Chief Justice Earl Warren: -- Ohio in the relation of Eaton, Appellant, versus Price, Chief of Police.

Mr. Furman.

Mr. Greene Chandler Furman: Mr. Chief Justice, Mr. -- Associate Justices, may it please the Court.

The present case arises on appeal from the Supreme Court of the State of Ohio on an alleged violation of the Fourteenth Amendment.

It arose from the alleged violation of a Dayton municipal ordinance for housing inspectors.

It's brought on a writ of habeas corpus.

The man -- and I might say in the beginning that the name Eaton is misleading.

The real appellant is Earl Taylor.

Mr. Eaton was the first of a number of attorneys in this case, and he is no longer our counsel or connected with the case.

So the actual appellant is Mr. Taylor.

The trial court on the writ of habeas corpus was a Court of Common Pleas of Dayton, Ohio.

It granted the writ on constitutional ground.

The case was appealed to the Court of Appeals of Ohio.

I forget the number of it, one sitting there in Dayton, and was reversed by 2-to-1 vote, and that opinion was affirmed by the Supreme Court of Ohio.

From that point, application of appeal was taken to the Supreme Court of the United States.

In the time that this Court noted probable jurisdiction on June the 8th, 1959, the Court, I believe, acted in an unprecedented manner.

The Court admits it rendered three memorandum opinions.

It was the opinion of four of the justices, that this case was absolutely controlled by the case recently decided in May of Frank versus Maryland.

I'm sure that the Court is familiar with this case, and the Frank versus Maryland case and -- and other cases arising on this type of thing.

That, as I say, is unusual.

It's a little disconcerting because it means I've got to persuade one of you, gentlemen, that you're wrong, and that is -- is something to undertake.

Justice Felix Frankfurter: Are the rest of us beyond penance?

Mr. Greene Chandler Furman: Yes, sir.

I [Laughs] guess so.

I -- I don't know what the penance would be but I hope at least to get five of you, gentlemen.

That is an absolute minimum necessity and that means that one of the four must change his mind.

Justice Hugo L. Black: You're not objecting for more, are you?

Mr. Greene Chandler Furman: No, sir.

Justice Felix Frankfurter: [Laughs]

Mr. Greene Chandler Furman: It does have this advantage though as I see it.

One of the most frustrating things that I found in law is to prepare a case and to think you're arguing it correctly, and the Court apparently is attentive, and then it goes off and decides a case on some other ground.

In view of these memorandums, I know that we must face the case of Frank versus Maryland and distinguish between that case and the present case goes under the name of Eaton, Ohio ex rel.

Eaton versus Price, Chief of Police.

I am happy to tell the Court that, at least in my opinion, the two cases can be distinguished in three ways.

On the facts of the case and many cases that are similar, differ in facts, and the facts are after all the important thing that we try to find out what are on the Dayton ordinance as compared to the Baltimore ordinance on the penalty of the Dayton ordinance and of the Baltimore ordinance.

The -- the facts of this, in the -- in the Dayton case, Earl Taylor was born in State of Ohio, from what I can gather from the record.

I might say that I don't know him.

He was admitted to the plumbers union in Dayton, Ohio in 1914.

Like a great many people, his home is in his wife's name but he paid some of the cost of it, and they live in a street in the City of Dayton.

It's a small four-room house, I believe.

He has never had any criminal record.

And the property, according to him, is in excellent condition.

In 1957, a man came there and he said he want to go in his house.

He asked him why and the man couldn't tell it.

He said the law let him come in.

He asked him if -- if he was asked in the trial court in the case on habeas corpus if he had anything and he said, “Yes.”

He had a sheet of pad, a yellow paper like that chap over there, the fellow over there.

I take it's a legal pad and that's what he had.

Justice John M. Harlan: Did he show any card for identification?

Mr. Greene Chandler Furman: He did not at that time.

They call on him three times.

It was in the morning.

And on the second time, I think two men came, and on the third time, I think two men came, and one of them pulled a card out of his hip pocket according to the testimony.

And -- but none of them told him why they wanted to get in the house.

Now, the testimony --

Justice John M. Harlan: (Inaudible)

Mr. Greene Chandler Furman: Well, I think it was a minimal compliance, if a compliance.

I don't have to look that up but you'll find his testimony in the record.

I can read this part.

They were there on three occasions.

Justice John M. Harlan: What page?

Mr. Greene Chandler Furman: That's on page 20 of the transcript.

And what happened?

Well, the first time they came there, they just came and said they wanted to come in the house and go through the house and inspect the inside of the house.

They didn't have any credentials or nothing.

And that was a young fellow, I don't know his name.

Only thing he had was just a piece of paper, and he wanted to go through the house and inspect the house.

I said, “You have nothing to show me, you've got a right to go through my house.”

He said, “We don't have to have according to the law passed four years ago.”

I said, “That don't show me that you've got --

Chief Justice Earl Warren: Where are you reading from, Mr. Furman?

Mr. Greene Chandler Furman: On page 21.

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Greene Chandler Furman: Now, I began at the bottom of 20 and reading --

Chief Justice Earl Warren: Yes.

Mr. Greene Chandler Furman: -- at the top of 21, Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Greene Chandler Furman: “That don't show me that you've got anything in there, you want for an inspection.”

And further, “I don't have nothing in my house that has to be inspected.”

And he said, “Well, you know according to this ordinance, we got a right to go through your house and inspect your house.”

I said, “No, I don't think you have unless you got a search warrant.”

Did they have a search warrant?

No, they didn't.

Only thing he had was a piece of yellow paper tablet like that gentleman got over there.

So he stood there and argued.

And I said, “Until you get something to show me that you've got a right to come in my house for inspection or what you want to inspect in my house.”

I said, “You cannot come in.”

He says, “If that's the way you feel about it, we'll have to leave it up to the housing inspectors.”

I don't know who this man was, if he is really the housing inspector, perhaps he was one, perhaps he wasn't.

All I know is what's here.

I guess he meant down to the office, that was some young fellow.

Then, the second time the fellow came out.

He entered the same way, came up like that and then call me on the telephone wondering if he could come to my house and inspect the inside.

I said, “Who are you, anyway?”

He said, “I'm the building inspector or the housing inspector.”

And he said, “Well, I don't see what rights you've got coming into my house until you show me in writing or some kind of facts that you've got a right to come into house and inspect the house.

I will not let you in.”

And I said furthermore, “I know the building inspectors.”

I remember this man, the union plumber.

And I know the plumbing inspectors and the electric inspectors and all the rest of them.

I said, “I worked at this business and I come in contact with them off and on and as far as you coming in,”

I said, “You can't come in.”

He said, “If I bring the inspectors out with me, could I come in?”

I said, “No, you can't come in but I'll let the other inspectors come in if they want to come in, but you can't come in.”

Now, I don't -- the man, as I say, he has been a plumber a long time, maybe he was acting a little unusual.

The question is was he acting as the man that has a right to act under the Constitution of the United States?

“Do you know who that was?”

“I don't know anymore than you do.

I don't know who he was.

He was just some young fellow.”

And then he goes on, on page 22 to cut it a little short, the last time they came there, a colored fellow and a white fellow, and they came to the door and I talked them out and he said, “Mr. Taylor?”

I said, “Yes, sir.”

He showed me like a picture.

He had a picture of a piece of paper, on a piece of paper, and he held it out in a hand and stuck it back in his pocket.

He said, “The housing inspector wanted to inspect your house.”

I said, “What do you have in there that you want to inspect?”

I said, “I have nothing in my house for inspection.”

He said, “We have a right to come in your house, go through your house and inspect the whole inside of your house.”

I said, “You have nothing wrote down on paper.

You don't have a thing to show me.

You are going to come in there to inspect anything.

And as far as that goes, you aren't coming in unless you have a search warrant to get in.”

Did he have a search warrant?

No, sir.

Did you ever come back without a search -- did they ever come back without a search warrant?

No, sir.

And then it goes on that.

He -- he expressed a willingness to let other types of inspectors that he knew but these men were there and then I'm going to tell him why they wanted to come in, and he thought that was going a little too far.

Justice John M. Harlan: The picture on a piece of paper (Inaudible)

Mr. Greene Chandler Furman: It may be.

I have several but I don't know whether that order let me in your house, Your Honor, or not.

Justice John M. Harlan: Well, that's a different (Inaudible)

Mr. Greene Chandler Furman: [Laughs] Yes, it is but I mean --

Justice John M. Harlan: (Inaudible) point of question is whether you're (Inaudible) your case wholly on constitutional grounds (Inaudible)

Mr. Greene Chandler Furman: Well, I don't know the statute was complied, but we are putting it on constitutional grounds.

Justice John M. Harlan: The statute (Inaudible) according to state law (Inaudible)

Mr. Greene Chandler Furman: Yes.

Justice John M. Harlan: (Inaudible)

Mr. Greene Chandler Furman: Now, on the trial of the case, there's an interesting fact and that is, there was only one witness.

The witness was Earl Taylor.

His testimony is uncontroverted.

Who these people were, were never shown anything else.

I think, therefore, we must accept that everything Mr. Taylor said was true.

He said his house is in first class condition in every particular.

He says he's a plumber.

He knows it.

There's nothing wrong with the house.

These people couldn't tell him why they wanted to come in and that's why they didn't get in.

They have that -- they asked him about drinking and disturbances and all that, and his testimony is a little amusing.

He says, “You have had wild parties down there?”

He says, “Absolutely not.

I'd get killed if I did.”

I think he was afraid of his wife, but that's not unusual.

That seems the inference I get out of it.

Chief Justice Earl Warren: You mean the inspectors asked him if --

Mr. Greene Chandler Furman: No --

Chief Justice Earl Warren: --he had wild parties down there.

Mr. Greene Chandler Furman: -- on examination.

On examination at the -- at the trial of the writ of habeas corpus.

He was asked if he had any wild parties of excess or disturbance of any kind.

He said, “No.”

He said his house was in first class condition in every particular.

Justice Hugo L. Black: Who asked him that?

Mr. Greene Chandler Furman: His attorney at that time, Mr. Eaton.

There's -- when you consider the facts, in other words, we must assume this house is first class in every particular.

The evidence uncontroverted shows that there was no reason given at any time for wanting to inspect the house.

There was no warrant.

We should consider the difference between this house and the house of Mr. Frank, in the case Frank versus Maryland.

In other words, we have the -- the opinion of Justice Whittaker, which is very short in that case.

It says the core of the Fourth Amendment prohibiting unreasonable searches applied to the States through Due Process Clause of the Fourteenth Amendment and cites Wolf versus Colorado.

I understand the Court's opinion to adhere fully to that principle and being convinced that the health inspectors request for permission.

Now, this was a health inspector and not a housing inspector.

I don't know exactly what a housing inspector does.

At least, they apparently didn't know.

In the premises in midday for the whole purpose of attempting to locate the habitat of disease carrying rodents known to be somewhere in the immediate area was not a request for permission to make that, and the code procedures followed did not amount to enforcement of an unreasonable search within the meaning of the Fourth Amendment.

Now, I believe I understand Mr. Whittaker makes a great deal of difference between this case and the Frank case because there was, let's say, no hot pursuit of rodents in this case.

As far I can see, there was really no hot pursuit of anything because nobody knew what they wanted to find out.

In the -- in the majority opinion of that case of Frank versus Maryland, we have -- it was rendered for the Court by Mr Frankfurter, Mr. Justice Frankfurter, excuse me.

He cites in that case, “Whenever the Commissioner of Health shall have caused to suspect that a nuisance exist in any house, cellar or enclosure, he may demand entry therein in the daytime and if the owner or occupier shall refuse or delay to open the same and admit free examination, he shall forfeit -- forfeit and pay for each sum the refusal of $20.”

We now read the ordinance of Dayton that Section (a), you'll find it on the transcript at page 45.

I hate to read but I don't know how else we can cover it, “The housing inspector is hereby authorized and directed to make inspections to determine the condition of the dwellings, units, rooming houses, rooming units located in the City of Dayton in order to preserve the safety of the occupants and the general health and welfare and great many other things.

For the purpose of making such inspections and upon showing appropriate identification, the housing inspector is hereby authorized to enter, examine and survey at any reasonable hour all dwelling units, rooming houses, rooming units and premises.

The owner or occupant of every dwelling unit, rooming house therefore shall give -- thereof shall give the housing inspector free access to such dwelling,” and it goes on.

In other words, the great difference is that the Commissioner of Health shall have cause to suspect that a nuisance exist in any house or cellar.

In the Dayton ordinance, there is no necessity.

There is no reason.

He can go in at any reasonable hour.

He is limited to daytime.

Well, a reasonable might be 7:30 at night because that's off when the man is at home.

These all occurred in the daytime.

They call in the morning.

Mr. Taylor was there.

Justice Hugo L. Black: Was the housing inspector who makes -- wants to make this search?

Mr. Greene Chandler Furman: He was -- I don't think it was the housing inspector himself.

There had several different men came out, if you read the testimony, Your Honor.

Now, the --

Justice Hugo L. Black: Was the ordinance construed as allowing anyone to come in besides the housing inspector?

Mr. Greene Chandler Furman: That would seem to be the housing -- that -- that would seem to be the opinion, Your Honor.

All I know is what's in the transcript.

And honestly, it's spotty in parts like most habeas corpus things.

The last point is that --

Chief Justice Earl Warren: Well, what testimony did they rely on to -- to -- oh, oh, there was a trial in this case, wasn't there?

Mr. Greene Chandler Furman: The trial of the writ of habeas corpus, yes.

Chief Justice Earl Warren: Yes.

Mr. Greene Chandler Furman: The only witness was the appellant, Earl Taylor.

Chief Justice Earl Warren: Yes, appellant.

Mr. Greene Chandler Furman: And for that reason, I think everything he said was the truth.

Chief Justice Earl Warren: Yes.

Mr. Greene Chandler Furman: And I don't think it states he didn't know who these people were.

That's what he said so.

I don't know whether they're housing inspectors or who they were.

I might suspect there were, perhaps, deputies of the housing inspector because I don't think the housing inspector makes all of this himself.

I don't know.

If you ask me what I know, the evidence doesn't show it.

Chief Justice Earl Warren: Yes.

Mr. Greene Chandler Furman: I got into this case in January, and all I know was what I've been able to find because --

Justice Hugo L. Black: Has there been any challenge to the ordinance to its application insofar as some person other than the housing inspector made the entry?

The ordinance says the housing inspector.

Mr. Greene Chandler Furman: That's what it said.

Justice Hugo L. Black: Has it been construed by the city, I mean, that others besides the housing inspector (Voice Overlap) --

Mr. Greene Chandler Furman: As far as I know--

Justice Hugo L. Black: (Voice Overlap) construe it?

Mr. Greene Chandler Furman: -- it has not.

I don't think there's been another -- there was another case in Ohio that is mentioned.

It was not appealed and it differed from this case, and that it was an apartment and not a home.

Justice Hugo L. Black: I presume probably, we have to assume that the Court held that others beside the housing inspector could go in under authority of this ordinance, was it not?

Mr. Greene Chandler Furman: At least, I assume it did because three men apparently, two at one time and one man by himself was described as a young fellow with a pad of yellow paper.

Justice Hugo L. Black: Are there any evidence that the housing inspector himself ever went into the house?

Mr. Greene Chandler Furman: No, sir, as far as I can read.

Justice William J. Brennan: Mr. Furman.

Mr. Greene Chandler Furman: Yes, sir.

Justice William J. Brennan: I notice in the opinion of the Court of Common Pleas at page 4 of the record, this sentence, “The petitioner refused to permit housing inspectors to enter his home on several different occasion.”

Mr. Greene Chandler Furman: Yes.

Justice William J. Brennan: What significance that we -- we've had to that as to the identity of this (Voice Overlap) --

Mr. Greene Chandler Furman: Well, the law says there's a housing inspector.

The Court of -- the Court of Common Pleas says housing inspectors.

I -- I don't imagine, I don't know, maybe some cause or facts are not here and were limited to the record as the record exist.

Justice Felix Frankfurter: What is the population of Dayton?

Mr. Greene Chandler Furman: Oh, about 250,000.

I've never been in Dayton.

Justice Felix Frankfurter: There's just one housing inspector in that city?

Mr. Greene Chandler Furman: No.

Apparently, they had -- three tried to get into this house, Your Honor.

Justice Felix Frankfurter: Well, then -- and I don't understand.

Mr. Greene Chandler Furman: Well, as I --

Justice Felix Frankfurter: I don't understand your answer to Justice Brennan's question.

Mr. Greene Chandler Furman: Oh, you mean -- well, as I say --

Justice Felix Frankfurter: You said that -- that the Court of Appeals has referred to housing inspectors were denied.

And you say -- the statute says or the ordinance says housing inspector in the singular, I don't get the answer -- point of that answer.

Mr. Greene Chandler Furman: Well, the Court does say, I mean the ordinance does say housing inspector and the judge says housing inspectors.

Justice Felix Frankfurter: Well, housing inspector means a housing inspector.

Mr. Greene Chandler Furman: I think so.

Justice Felix Frankfurter: Doesn't mean just one.

Justice Felix Frankfurter: That's correct.

Justice Felix Frankfurter: Does it mean just one?

Mr. Greene Chandler Furman: I -- well, I read --

Justice Felix Frankfurter: You mean (Voice Overlap) --

Mr. Greene Chandler Furman: -- as I read the ordinance, it means just one housing inspector but I presume that --

Justice Felix Frankfurter: Well, I suppose I don't know, it's long time since I suppose (Voice Overlap) --

Mr. Greene Chandler Furman: It's been hearsay.

I understand that they had a block up.

And they were spread over the country like a --

Justice Felix Frankfurter: But the statute --

Mr. Greene Chandler Furman: -- cloud of locus, but I don't know.

Justice Felix Frankfurter: But the statute says when a housing inspector does this.

That doesn't mean only one must be allowed to do that.

I suppose the old New York Tenement Laws has a -- a tenement housing inspector but doesn't mean that there's only one in the City of New York.

Mr. Greene Chandler Furman: In Section (a) on -- on page 45, it says the Housing, capital H, Inspector --

Justice Felix Frankfurter: Well that --

Mr. Greene Chandler Furman: -- capital I, is hereby, and that means one man.

Justice Felix Frankfurter: Well, that's been the description of the -- of -- of an officer holder with a housing inspector.

It doesn't mean that is allowed to be only just one.

It's a description, it isn't an exclusion.

Justice Hugo L. Black: Does your Court hold that?

Mr. Greene Chandler Furman: No, sir, the Court, the trial court refers housing inspectors and pluralized them and makes it with a small -- small -- without capitalization, I believe.

That's what --

Justice William J. Brennan: Well, the point of my question, Mr. Furman, really was this.

As the case gets here, is this a finding of fact by the trial judge which, for our purposes, we have to accept whatever the record may show?

Mr. Greene Chandler Furman: Well, the judge found one finding of fact and the other courts found a little different.

Justice William J. Brennan: On this point?

Mr. Greene Chandler Furman: I don't think on that point, apparently they were a number.

Justice William J. Brennan: This was a judge, wasn't it?

Mr. Greene Chandler Furman: I will admit this that for practical purposes, there were a number of housing inspectors, that's clear.

On the other hand, there was only one qualified in the ordinance.

Now, that point was not raised so far as I can find below.

Of course, the pleadings of the counsel, all the way through stressed the unconstitutionality of the act.

You'll find it in the -- in the opening statement of -- of counsel.

You'll find that the judge himself -- “The relator,” I'm reading the Court of Appeals opinion.

Justice William J. Brennan: What page is this?

Mr. Greene Chandler Furman: 52.

“The relator refused on several occasions to permit housing inspectors, small H and small I, to enter his home without a search warrant, although he is --

Chief Justice Earl Warren: What is that document?

What is that document you're reading from?

Mr. Greene Chandler Furman: This is the transcript of record.

Chief Justice Earl Warren: I know, but what -- what (Voice Overlap) --

Mr. Greene Chandler Furman: It's the opinion of the Court of Appeals.

Chief Justice Earl Warren: This opinion?

Mr. Greene Chandler Furman: Yes, sir.

It's the opinion not the -- without a search warrant.

Chief Justice Earl Warren: Well, on that point, Mr. Furman, I suppose that if they sent the sheriff instead of the housing inspector, you -- you wouldn't object to it on the grounds that it was a deputy sherif and -- and not the sherif himself, would you?

Mr. Greene Chandler Furman: Ordinarily, we call them the High Sheriff doesn't do anything except he often has a lot of -- he's hardly ever makes a risk, the sheriff's papers.

But apparently, from the ordinance, there is a housing inspector and if Your Honors won't believe that the housing inspector must do it personally, I'll be delighted.

Chief Justice Earl Warren: Well, we want to--

Mr. Greene Chandler Furman: [Laughs]

Chief Justice Earl Warren: -- we want to be realistic too.

Mr. Greene Chandler Furman: I think --

Chief Justice Earl Warren: (Voice Overlap) realistic, too.

Mr. Greene Chandler Furman: They have deputies unquestionable.

Chief Justice Earl Warren: When they say -- when the statute says the sheriff, I suppose --

Mr. Greene Chandler Furman: That's true.

Chief Justice Earl Warren: -- that (Voice Overlap) --

Mr. Greene Chandler Furman: The deputy --

Chief Justice Earl Warren: -- these deputies, doesn't it.

And if it says the housing inspector, I suppose be -- as deputies, it -- they would --

Mr. Greene Chandler Furman: I think that's --

Chief Justice Earl Warren: -- they would perform a function.

Mr. Greene Chandler Furman: I think that's correct.

Chief Justice Earl Warren: Now, it seems to me the only question is, here, were -- is there anything in the record to establish that this were housing inspector, inspectors either the principal or deputies?

Mr. Greene Chandler Furman: There is no evidence because the -- Taylor states in his evidence that he didn't know they were.

Now, they told him and they flash something out of packet of a card the third time and showed it to them.

But I think if you read Mr. Taylor's testimony, which doesn't cover but a few pages, you won't find.

Am I correct in that?

That he knew who these people were.

His concluding statement was that “I wouldn't let him in because they couldn't tell me what they wanted and what they're going to do.”

Now, that's the record, as I say, I -- I was not --

Chief Justice Earl Warren: That was not disputed in the record.

Mr. Greene Chandler Furman: It's not disputed.

Every word of the record is true because there is only one witness and that's the appellant, Earl Taylor.

And as I say, we raise the question of the Fourteenth Amendment or the constitutionality of this thing and the opening statement of counsel and the judge, and we have that.

Now, there are number of cases that I could cite, but my time is passing and I must yield to my colleague.

But I -- there's one case particular that I want to call to the Court's attention, I haven't argued much this point.

It's Gibbs versus Burke, Warden of the Penitentiary, 337 U.S. 773.

We did --

Chief Justice Earl Warren: Is that in your brief?

Mr. Greene Chandler Furman: -- not cite that.

Chief Justice Earl Warren: Is that in your brief?

Mr. Greene Chandler Furman: No, sir.

Justice Hugo L. Black: 337 U.S. what?

Mr. Greene Chandler Furman: 773.

It says two procedural points require but brief attention.

The federal question was adequately if inarticulate -- inartistically raised in the petition for a writ of habeas corpus.

We -- we reconsider insignificant under these circumstances the fact that petitioners cited the Sixth rather than the Fourteenth Amendment of the Constitution.

Meticulous insistence upon the regularity in procedural allegations is foreign to the writ of habeas corpus.

Justice Hugo L. Black: What page did you say, 337?

Mr. Greene Chandler Furman: 337, 773.

And we have the same problems in the open.

If Your Honor will excuse me I think I have distinguished those cases and I believe (Inaudible)

Chief Justice Earl Warren: Mr. Rhyne.

Argument of Charles S.rhyne

Mr. Charles S.rhyne: Mr. Chief Justice, may it please the Court.

I would say first of all that our position is that this case is not properly here at all.

He mentioned the petition for a writ of habeas corpus.

Now, what did they say in that petition?

They say that the Earl Taylor is unlawfully imprisoned, restrained and deprived of his liberty.

There is no mention in that petition of the Fourteenth Amendment.

There is no mention of the Fourteenth Amendment in any of the pleadings in this case until the notice of appeal filed after the rehearing, it's been denied by the Ohio Supreme Court.

And none of the assignments of error and none of the opinions that the three opinions of the courts in Ohio was the Fourteenth Amendment discussed and at no time below was this ordinance drawn in question as a violation of the Fourteenth Amendment and of course, the jurisdiction of this Court is dependent upon when it's reviewing a final judgment of the highest court of a State, that the ordinance be drawn in question as a violation of the Constitution of the United States.

Chief Justice Earl Warren: Was there no constitutional question raised at all?

Mr. Charles S.rhyne: Yes, there was.

Chief Justice Earl Warren: What (Voice Overlap) --

Mr. Charles S.rhyne: It was raised in this way.

In the Court of Common Pleas, the -- it was contended that this ordinance violated the Fourth Amendment and the similar provision of the Ohio Constitution.

It was contended there that the violation was of the reasonable search and -- and seizure provision of the -- of the Fourth and -- Amendment and the -- the Ohio Constitution.

And the courts all along the line pointed out that of course the Fourth Amendment does not apply to the States and they proceeded to consider this on the basis of whether it was a violation of the similar Ohio constitutional provision.

And this is crystal clear in the opinions of the Court.

In fact, the only mention, the only mention of the Fourteenth Amendment by any court below is in the -- the Ohio Court of Appeals and the Supreme Court opinions where they have a quotation from the Givner case, a Maryland case, and it just happens to mention down in the body of the quotation the Fourteenth Amendment.

Now, after we raise this jurisdictional point here, the appellants did the rather unprecedented thing of filing all of the briefs in all the courts below.

In order, they said, to demonstrate that they did indeed raise this question under the Fourteenth Amendment.

But unfortunately, those briefs don't help them at all because the -- in all three briefs in the Court of Common Pleas and the Ohio Court of Appeals and in the Supreme Court, they do have a quotation from -- from Wolf versus Colorado, which mentions the Fourteenth down in the quotation.

But these are -- that's quoted under a provision of their briefs in all three instances that argues that this ordinance is a violation of the Ohio Constitution and of the Fourth Amendment not of the Fourteenth.

And interestingly enough, in the Ohio Court of Appeals brief, counsel distinguishes the instant case and the Givner case in Maryland on the ground that the Givner case in Maryland involved the Fourteenth Amendment and this involves the Fourth in the Ohio Constitution.

And they made the same distinction in the Ohio Supreme Court.

So the only real mention of the Fourteenth Amendment below is made in a brief amicus curiae filed by the Ohio Civil Liberties Union in the Supreme Court of Ohio.

Now, that mere mention by the Supreme Court of this amicus curiae and the Supreme Court of Ohio is certainly not a drawing in question sufficient, at least at that level, to sustain jurisdiction of this Court.

Now, the provision that relates to the jurisdiction of this Court that requires the drawing in question below, I think, is -- is founded on two very sound things.

Number one, when you're reviewing a -- a decision of the highest court of a State as a matter of comity, you're going to reverse them on a ground that wasn't raised below, the least -- and since this -- you're in effect reviewing, you should review what they're -- what' they're -- what they did below and what they said below, and it -- it wasn't raised at all below.

You're not really reviewing what the -- what the lower court did or the Supreme Court of Ohio did.

Now, here, where you have a challenge to something that's been done since the real founding of our -- our nation and a claim that a new constitutional right is being erected and you're questioning Ohio action, Ohio legislation and Ohio courts, the very least that could be required is that you get the views of the Ohio courts on this question.

And it seems that this -- this statute was put in here to -- to require the people who -- who challenge state statutes in particular to specify and to specify with a -- with a riffle, not a shotgun, their objections why they think this is unconstitutional.

I think it's very sound statutory procedure and very sound that the Court, in its decisions, which we have cited in our brief, has always held that you must use the words and not try to come here by analogy or afterthought.

Now, it's true that the Fourteenth Amendment, as Mr. Justice Whitaker said in the Frank case, does apply the -- the heart and core of the unreasonable search and seizure provisions of the Fourth states.

But again, the argument that the -- the Fourteenth was applied in that way was not at all before the Ohio courts all the way up.

They merely construed their own constitutional provision and pointed out quite properly that the Fourth Amendment has no application in Ohio or to -- to state action.

Chief Justice Earl Warren: Doesn't the -- the use of the Wolf case, Wolf versus Colorado by the defendant below indicates sufficiently clear to the -- to the Court what the -- what the defendant had in mind?

Mr. Charles S.rhyne: Mr. Chief Justice, I -- I know --

Chief Justice Earl Warren: Because you know, sometimes, sometimes, we don't always agree here whether it's the Fourth or the -- or the Fourteenth.

Mr. Charles S.rhyne: Well, I -- I think that when --

Chief Justice Earl Warren: And it would seem -- seem to me that that would -- that that would bring it to the attention of the Court fairly well.

And -- and furthermore, didn't the brief of the -- of the Civil Liberties Union raise that issue specifically, the question of the -- of the Fourteenth Amendment?

Mr. Charles S.rhyne: Well, answering your second question first.

It's true that the Ohio Civil Liberties Union brief did mention both the Fourth and the Fourteenth --

Chief Justice Earl Warren: Yes.

Mr. Charles S.rhyne: -- in the Ohio Supreme Court.

But the Ohio Supreme Court, under its own rules, could not consider any attack on this ordinance.

It wasn't raised in the two lower courts.

Now, this attack was not raised in the Court of Common Pleas.

So that question couldn't be presented even to the parties in the Ohio Supreme Court.

Now, with reference to the quotation from Wolf, I pointed out, if Your Honor please, that that quotation comes under a section of their brief in which they argue that this ordinance is invalid under the Fourth Amendment, not under Fourteenth.

And that counsel in his brief, both instances where he cited Wolf verus Colorado, says this case is different from the Baltimore case because that case involved the Fourteenth and this involves the Fourth.

So I don't believe that any of the courts below considered that the Fourteenth was ever cited to them or argued to them as a reason for the invalidity of this ordinance.

So in concluding on this point, I would say, Your Honor please, that we believe that the purpose and the letter and spirit of the code provision governing the jurisdiction of this Court would be violated if this case is taken and -- and reviewed under these circumstances where the Fourteenth Amendment was never mentioned below and the pleadings are about the courts.

Now, moving to the -- to the merits, we rest our case completely and squarely on the Frank case.

And before discussing the ordinance, I would like to correct my adversary just slightly on the facts.

It's true that all the evidence was offered by them, but it's also true that in that evidence, on page 21, this man said, “I am the building inspector or the housing inspector,” right in the middle of the page when it says, “Who are you anyway?”

And he said, “I am the building inspector or the housing inspector.”

And then, in addition to that, on page --

Chief Justice Earl Warren: But that was on the telephone, wasn't it?

That wasn't at his house when they came there to -- to get in, was it?

Wasn't that on the telephone?

Mr. Charles S.rhyne: It's then the second time -- it's not --

Chief Justice Earl Warren: No, no, what you just pointed out to us, that was on the telephone, wasn't it?

Mr. Charles S.rhyne: Well, just ahead of that, Mr. Chief Justice, it says this, “Then the second time, the fellow came out, he entered the same way.

He came up like that and then he called on the telephone and wanted to know if he could come to my house and inspect the inside of the house.”

It -- I don't believe it's clear whether it's on the telephone or -- or not.

Now, to the me, this --

Chief Justice Earl Warren: Well, now, let's just read it, Mr. Rhyne and -- and (Voice Overlap) --

Mr. Charles S.rhyne: I said, “Who are you anyway?”

He said, “I'm the building --

Chief Justice Earl Warren: Now, wait a minute.

Now, let's read the whole sentence.

Mr. Charles S.rhyne: All right.

Chief Justice Earl Warren: “Then the second time, the fellow came out, he entered the same way.

He came up like that.

And then he called me on the telephone, wanted to know if he could come to my house and inspect the inside of the house.

I said, “Who are you, anyway?”

He said, “I'm the building inspector or the housing inspector.”

And he said, “Well, I don't see -- I don't see what right that you've got coming into my house.”

Now, doesn't that say that it was on the telephone?

Mr. Charles S.rhyne: Well, I -- I say the -- I think the -- I would conceive that it is.

Chief Justice Earl Warren: All right.

Mr. Charles S.rhyne: And on page 42, they offered the -- the warrant in this case.

All the evidence they offered themselves.

The warrant says this, and I quote only part of it.

It's -- it's this quoted in page, “He unlawfully refused to permit a duly authorized agent of the Division of Housing Inspection of the City of Dayton to enter and survey the said premises.”

Now, returning to the -- to the record itself, I think it's -- it's quite clear over on page 29 and -- and 30 that this man was properly identified as a housing inspector.

Down at the very bottom, it says this, “We understand you, Earl,” in answer to Mr. Eaton's questions, “that you wouldn't object the plumbing inspectors and electrical inspectors coming into your home.”

Answer, “Well, I told him this fellow called me on the telephone and asked me if they would come, the plumbing inspectors or electrical inspectors.”

“Could they come in?”

And I said, “They could come in but you can't.”

“You have no objection to a plumbing inspector coming into your home to inspect the plumbing?”

“I do not.”

“You have no objection to an electrician coming in and inspect the electrical wiring?”

“I do not.”

And overall in page 30, “Do you have any objection to a fire inspector coming in to inspect a fire danger?”

“No, sir.”

“It's just the housing inspector that you're objecting to it, is that right?”

“Yes, sir.”

Question, “Can you tell the Court why you would discriminate between housing inspector and the other inspectors?”

And after an objection, he was allowed to answer, “Well, if you want me to tell the truth, I will tell you.

I don't think that the man that they have got as inspectors are qualified in a position to go through a man's house and inspect anything before they have never worked at the business.”

Now, I think that it's quite clear that they're talking about housing inspector.

There was no question below or anytime in connection with this case as to whether or not the housing inspector was involved here.

I -- I would --

Chief Justice Earl Warren: Well, I know but does that -- does what you have read, as a matter of proof, indicate that the man who came there were housing inspectors?

Now, how does that -- how does that prove that, Mr. Rhyne?

Mr. Charles S.rhyne: Well, it seems to me --

Chief Justice Earl Warren: Historically, he's telling me about what he would object to, what he wouldn't object to and why he -- he would object to one and wouldn't object to the other, but -- but this doesn't, what you've just read, doesn't -- doesn't indicate in anyway that these men who actually came to his house and demanded admittance were housing inspectors or any kind of inspectors.

Mr. Charles S.rhyne: Well, may I just answer this way, Mr. Chief Justice.

I think a fair reading of all of the testimony from pages -- starting about page 13 to the end of it indicates that all they were talking about were housing inspectors, that everyone assume that these people were housing inspectors.

They -- it's true that no question has been raised in any court below --

Chief Justice Earl Warren: Well, this hadn't --

Mr. Charles S.rhyne: -- about whether they were not --

Chief Justice Earl Warren: -- didn't presume that they were housing inspectors because he says in his testimony he didn't know.

And he's -- that's the only testimony that's in the case.

So how can you say that everybody is talking about housing inspectors?

There weren't any other witnesses expect this one man.

Mr. Charles S.rhyne: Well, the -- the trial court, which I suppose, made the only finding of facts and said was the one who heard Mr. Taylor and considered this evidence.

Chief Justice Earl Warren: Did he make it as a finding of fact?

Mr. Charles S.rhyne: Well, on page 4, I -- I can't say --

Chief Justice Earl Warren: Is -- is that a finding of fact?

Mr. Charles S.rhyne: I would say that it is, Your -- Mr. Chief Justice, yes.

Chief Justice Earl Warren: Did he say so?

Mr. Charles S.rhyne: On page 4, he -- in -- in the third paragraph, he says this, “The petitioner refuse to permit housing inspectors to enter his home on several different occasions without a search warrant.”

Now, I think -- as I say, it's quite clear from the record that all they were talking about is -- is housing inspectors and that this man did offer identification as a housing inspector.

You heard the testimony read here.

It said he put the -- the identification back in his pocket in a hurry, but at least, he offered some identification.

Chief Justice Earl Warren: Well, does that show it was a housing inspector?

Mr. Charles S.rhyne: I think it does, Your Honor.

Chief Justice Earl Warren: All right.

What language in the testimony?

Mr. Charles S.rhyne: I think the -- the language that was read.

Chief Justice Earl Warren: What page?

Mr. Charles S.rhyne: I believe it's on page 20 --

Unknown Speaker: 22.

Mr. Charles S.rhyne: -- 22 in the middle where the answer is, “The last time he was there, a colored fellow and white fellow, they came up to the door and I walked out there and he said, “Mr. Taylor?”

I said, “Yes, sir.”

He showed like a picture.

He had a picture on a piece of paper.

And he held it in his hand and stuck it back in his pocket.

He said, “The housing inspector wanted to inspect your house.”

Now, Mr. Chief Justice, I'm not going to labor or push the point except I do sincerely believe that a full and fair reading of this testimony will allow, at least, a conclusion that the judges in Ohio and all the way through that these people were housing inspector and properly identified as such.

Chief Justice Earl Warren: Well, that's different if we -- if we were to take all the testimonies.

Maybe that's true, but I don't (Voice Overlap) --

Mr. Charles S.rhyne: Well, I am quite convinced with that.

Chief Justice Earl Warren: -- point out what you -- what you were relying on specifically.

Mr. Charles S.rhyne: Well, I'm relying on all of the testimony because it has been assumed all the way through that there was no question about these people being housing inspectors and identifying themselves properly because the ordinance requires it, and I think it's -- it's a presumption that the ordinance was complied with unless there is some strong evidence showing that it was not.

Now --

Chief Justice Earl Warren: Now, may I ask you, Mr. Rhyne, I'm just curios about it.

Were they have any trial in police court?

Mr. Charles S.rhyne: No trial as yet, no.

Justice Hugo L. Black: Did the customer -- try cases like that on habeas -- or you might not know or know how?

Mr. Charles S.rhyne: Well, I think Mr. Duffy can answer that --

Justice Hugo L. Black: Maybe its (Inaudible) but while the case is pending where the charge is made.

It's rather unusual, isn't it?

Mr. Charles S.rhyne: I -- I think the Court of Appeals said that there was a majority and a minority rule in -- in Ohio.

They would go ahead and -- and hear the -- and determine the appeal even though the man had not been tried and heard on habeas corpus.

Chief Justice Earl Warren: As I understood, they -- they fixed bail at a thousand dollars.

Mr. Charles S.rhyne: That's right.

Chief Justice Earl Warren: When the man couldn't make the bail, so he had to go to jail.

Mr. Charles S.rhyne: I wouldn't agree with you on that he couldn't.

He had a home and could have made bail --

Chief Justice Earl Warren: Well --

Mr. Charles S.rhyne: -- rather easily.

I -- I think that what -- this was a routine thing.

He came, he pleaded not guilty, the bond was fixed and he -- instead of making the bond, he sought to get out on -- on habeas corpus.

Chief Justice Earl Warren: Thousand dollars isn't always too easy to make for the average working man.

Mr. Charles S.rhyne: Well, his testimony was that he had put $2500 in his home.

And I think that it's reasonable to assume that these public officials in Dayton are reasonable people.

And -- they let him out without any bond, as a matter of fact, when it came up on habeas corpus on his own recognizance.

So I don't think that the fact that they fixed this routine thousand dollar bond goes to the -- to the validity of this ordinance at least.

Justice Felix Frankfurter: Mr. Rhyne, unless I'm -- I may be wrong, but the old law on New York City was that the validity of a statute under which an indictment is brought or under which an arrest is sought could be tested on habeas corpus.

Mr. Charles S.rhyne: Well, the Ohio rule seems to be the same, Mr. Justice Frankfurter.

Now, on the merits, I don't -- the -- the facts are -- are here.

I'm not quarreling about the facts stated by my adversary.

He did say that the reason he wouldn't let these housing inspectors in was that they were -- were unqualified.

He let everyone else but he didn't think these people were qualified.

Now, this Dayton ordinance is reasonable and a valid exercise of the police power, and I called attention of the Court to the fact that it is a narrow ordinance.

It authorizes inspection “to determine the condition of willingness”, to determine the condition of willingness.

It's not an authorization to inspect persons or rummage through personal effects.

It's limited to the structure itself and the installations which are a vital part of that structure.

And since the validity of this ordinance or any ordinance for that matter must be decided in the light of the conditions, the need which produced it.

I think it's important to notice that in the -- whereas clause, on page 44 of the record, the City Council of Dayton made a finding, which I think should be considered in considering the validity of this ordinance.

It's at the bottom of the page, “Whereas in the City of Dayton, there are dwelling and rooming houses which are so dilapidated, unsafe, dangerous, unhygienic or insanitary as to constitute a hazard and menace to the health, safety, morals and welfare of this residents of said dwellings and rooming houses as well as of the people of the City of Dayton.”

I think that finding indicates what this ordinance was adapted to accomplish.

The fact that the ordinance requires entry at a reasonable hour, it shows that this is not a knock in the middle of the night.

There is no power to force entry.

Identification is required.

And if after this inspector is admitted, he finds defects, what does he do?

He gives a notice in writing to correct them.

And then, what happens?

If they are not corrected, all the housing inspector can do is to go into court and get an order requiring that the dwelling be vacated or that the part of it that's unsafe be vacated.

This --

Justice Hugo L. Black: Is the entire ordinance here?

Mr. Charles S.rhyne: The entire ordinance, Mr Justice Black, is not.

I'm sorry that it isn't.

It's -- it's a part of the record that's filed here but not printed.

Justice Hugo L. Black: (Voice Overlap)

Mr. Charles S.rhyne: And then the -- the entire ordinance is -- is quite lengthy, and I think the -- it's -- it's really -- I wish that we're all in the --

Justice Hugo L. Black: I understood you are referring to some other parts of it.

Mr. Charles S.rhyne: Well, I'm referring to parts that are quoted in the record as a part of the opinion of the Ohio Supreme Court on -- it's page, I think, 89.

It is on page 88 and 89.

I'm referring to the parts of the ordinance that are -- that is quoted there where it -- it says that they -- if they don't comply with this notice, then the ultimate thing is that the housing inspector shall seek a court order.

I'm reading from page 89 of the record in the Court of -- shall seek a court order in a court of competent jurisdiction for the vacation of such dwellings or part thereon.

Justice Hugo L. Black: Is that little book available for us?

Mr. Charles S.rhyne: I would certainly -- this is the only one I have.

I will -- would leave it here.

It's just a complete copy of the ordinance.

Justice Hugo L. Black: I don't know if we need it, but it's --

Mr. Charles S.rhyne: I believe it's -- it's part of the municipal court record and I don't understood it was on file here, Mr. Justice Black.

Now, the City of Dayton, of course, rest this case, as I have said, 100% on the Frank decision because the -- the general structure and scheme of this ordinance is no different from the general structure and scheme of the ordinance that was involved in the -- in the Frank case.

In fact, I think there are more safeguards in -- in this case and this identification is required and Baltimore does not.

There is the distinction that my adversary referred to about this cause to suspect that a nuisance exists, which is in the Baltimore ordinance and not in the Dayton ordinance.

Now, I don't believe that that particular provision of the Baltimore ordinance was the reason for the decision in Frank.

I think that the Frank case was based upon the idea that from the beginning of our country and now, you have had these inspections for health and safety reasons, and that these hidden hazards cannot be discovered from the outside.

When something smells or smokes or scourges, it's too late.

Now, this routine systematic inspection idea, the fact that -- that you can't inspect from the outside, I think, is demonstrated by -- by two things that are contained in the briefs here.

First of all, the reference to the experience in the City of New York, which is quoted by amicus curiae on page 5 of their brief, where they say that in a 15 block area, there were 567 complaints.

The grand jury investigating slums there had this 15 block area inspected and found 12,445 violations.

And then on page 21 of our own brief, we give the experience in Dayton where four years ago, 16 people died because of defective gas heaters, unvented gas flues.

Three years ago, nine died.

Two deaths each in the last two years.

And last year, under this ordinance, there were 2912 defective gas flues discovered upon inspection which could not have been discovered from the outside.

And in 10 instances, the violation was so bad that they had to call the utility to come and cut all the gas at once.

Justice Felix Frankfurter: Could --

Mr. Charles S.rhyne: So --

Justice Felix Frankfurter: -- search warrants -- was there a basis for getting search warrants in these 18 cases that you just referred to?

Mr. Charles S.rhyne: Not at all, Mr. Justice Frankfurter, because they couldn't see the unvented gas flue from the outside.

So I don't believe that -- that this systematic inspection has ever been the basis of the type of thing that we're -- I mean, that -- that the -- the requirement of probable cause has ever been required for the type of inspection that we have here.

And I -- it is certainly true that this -- in the last few years is the first that there has been any question raised at all about this type of inspection and particularly that anyone has a constitutional right to prevent it.

I call attention of the Court to the fact that Dayton has had an ordinance on this subject since 1846.

And at 1846, they required the homeowners to allow inspectors to come in and inspect chimneys and flues and stoves for fires.

And then there is a whole series of ordinance that Dayton has had since then just as Baltimore, it had in the Frank case.

So something that -- that the people have never considered to be a violation of their constitutional right to raise it to the status of a constitutional right under the Fourteenth Amendment is going quite far.

I call attention to the fact that while it's true, the -- the Fourteenth Amendment does apply the unreasonable search and -- and seizure, a part of the Fourth Amendment to the States under the decision of this Court that the Fourth does not prohibit all entries, it prohibits only unreasonable entries.

And in this instance, where something has been done in -- in Dayton for more than 100 years and no one has questioned it, when it's been done all over the country where historically, the community has always protected itself against the carelessness of the individual.

And I also call attention of the -- of the Court to the fact, and I'm -- I'm glad the -- the entire ordinance will be before the Court now because this ordinance requires running such thing as running hot and cold water, bathrooms.

The -- the things that are -- are needed today and people are not going to live like cattle.

And of course, this ordinance is aimed at protecting the poor and the helpless who live in slum areas.

Those poor and -- and helpless will not get heat or anything else unless the police power steps in and -- and requires it.

I think that the emphasis upon decent housing and in recent years is one of the -- the greatest things that's going on in our country because in these slum areas, why, that's where disease and crime breed and grow.

And this police power, which has existed from the very beginning of our country without question, it's true, it -- it's expanded some because of the requirements of -- of urbanized living.

A man now doesn't have as much space around his house as he used to.

His -- he doesn't have a house with a motor around it.

It's his castle because his home is connected by water and sewer and -- and electricity and gas and drainage to his neighbors.

He's really only as safe as his neighbors.

And if --

Justice Hugo L. Black: Does all that -- does all that answer apply to whether a search is reasonable or not?

Mr. Charles S.rhyne: Well, Mr. Justice Black, I don't consider it a search in the first place.

I think --

Justice Hugo L. Black: I thought you were arguing it then on the basis of the reasonableness.

Are you to judge the reasonableness of the search?

Mr. Charles S.rhyne: No, I'm -- I'm not --

Justice Hugo L. Black: Or the necessity for searches?

Mr. Charles S.rhyne: I'm saying that this --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Charles S.rhyne: I'm arguing historically, Mr. Justice Black, that this has never been considered a search within the Fourteenth or the Fourth Amendment.

And even if you measure it by that yardstick, it's not an unreasonable search.

I would -- would certainly say that -- that that's true.

Justice Hugo L. Black: Well, would say it's never been considered as one under it or that it's just not been tested, it's that they accepted it?

Mr. Charles S.rhyne: Well, I think it's rather interesting that --

Justice Hugo L. Black: The -- the purpose, I suppose, is to keep your privacy whether -- whether you live on a whole community or another community or whatever the house.

Mr. Charles S.rhyne: Well, I think it's rather interesting that in the entire history of our country, it's never before thought to rise to a constitutional right.

Now, privacy --

Justice Hugo L. Black: But that it has, depending on who it is.

You're saying that an inspector, for certain purposes, can go in without it being unreasonable where an officer who is searching for criminals, it would be unreasonable.

Mr. Charles S.rhyne: Well, I think that this is not a search for criminal evidence.

And of course, there is where the -- the Fourth Amendment is brought into play.

If this was a -- a search for criminal evidence, if this was a -- a search to --

Justice Hugo L. Black: Suppose he just went and broke in --

Mr. Charles S.rhyne: -- to carry out the criminal laws --

Justice Hugo L. Black: Suppose the inspector just went and broke in, would you say that because he was an inspector and they needed inspection that justified it?

Mr. Charles S.rhyne: Well, this ordinance doesn't allow him to go in and break in.

Justice Hugo L. Black: I know, but I was testing your argument as to the judging it by the purpose for which he goes in.

Mr. Charles S.rhyne: Well, I -- I don't think that he has any right to -- to break in.

This ordinance says doesn't give him any such right.

And --

Justice Hugo L. Black: All right --

Mr. Charles S.rhyne: -- he can only enter under the authority conferred on him, Mr. Justice Black.

Now, in the -- the Fourth Amendment, the situation where -- there you're going in to -- to make a -- a criminal search and this type of -- of inspection simply can't be carried out from the courthouse.

And -- and you have a lay down certain rules that are required in order to get a warrant to -- to show probable cause, and you can't show probable cost in this kind of a case.

The Fourth does -- Amendment doesn't setup any kind of a double standard where you can get one type of probable cause for a criminal entry -- search entry and another for something else.These health inspectors just can't be turned into process servers.

You can't carry out this health protection from a -- from a courthouse.

This is a prevention thing.

It's not a punitive thing at all.

It's -- it's much for the protection of Mr. Taylor as it is for the community.

Justice Hugo L. Black: All -- all searches are for the protection of the people perhaps in -- in the sense that they're going to do there to try to catch criminals.

Mr. Charles S.rhyne: Well, this is -- this is an --

Justice Hugo L. Black: (Inaudible)

Mr. Charles S.rhyne: Mr. Justice Black, this is an -- this is an entry to protect the health and safety of the people, not a search.

I -- I don't believe that this -- they don't go there to take anything out of the house.

They don't rummage through their old drawers or anything like that.

And this is entirely a preventive anything to -- to protect the -- the residence of the dwelling.

And I think that's particularly important in the -- in the slum areas of the -- of the nations where this landlord would never bring their houses up to standard, unless there was some police power, police there to make them.

And --

Justice Hugo L. Black: Well, one -- one can agree with you fully on that idea and still not have to go to the next step to say that because of that purpose, they can go in without any -- whatever, supposedly, the safeguard of a -- of a search warrant issued by a magistrate.

Mr. Charles S.rhyne: Well, I -- I don't think in this type of case, you can justify a search warrant because you can't tell from the outside what is on the inside.

This --

Justice Hugo L. Black: And that -- that's always [Laughs] true.

That's one of the reasons they want to break in or get in.

Mr. Charles S.rhyne: Well, I don't think they want to break in or get in here.

Justice Hugo L. Black: I know, I know.

I'm -- I'm not talking about these officers.

Mr. Charles S.rhyne: I think that -- that, Mr. Justice Black, I said this is something that has gone on from the time our nation was in wilderness, they have always gone in and inspected homes.

The history of this was reviewed in the Frank case.

We reviewed it in our brief here insofar as Ohio.

They have the same history in Ohio as it had in the -- in Maryland.

And I -- I really feel that -- that this is something that has never been considered as -- on the basis that man has a constitutional right to prohibit the representative of the community at large who's coming in to protect the community against his individual carelessness.

That's about what it amounts to.

Now --

Chief Justice Earl Warren: Mr. Rhyne, isn't there -- isn't there a distinction between this ordinance and the Maryland ordinance, it's one of substance in -- in the Maryland ordinance, they require that he must have reasons to believe.

There must be some cause for his going in there.

In this -- under this ordinance, as I -- as I read it, it doesn't require that he have any reason to believe at all, he just -- he just do as he's -- as he apparently did here in this case, say, “I wanted -- I want to come in,” and the man says, “Why do you want to come in for?”

“Well, I got a right to come in,” and -- and relying on the testimony that was read to us here today, but isn't that a rather important distinction between those two --

Mr. Charles S.rhyne: I think -- I think that is a difference between this ordinance and the Baltimore ordinance.

But, Mr. Chief Justice, I don't think it goes to the existence of the power to come in and inspect for the benefit of the community at large.

It's true that Baltimore requires more than does Dayton.

But I would agree with what was said in the Frank case when Mr. Justice Frankfurter said this, “Time and experience have forcefully thought that the power to inspect dwelling places either as a matter of systematic area by area search or as here to treat a specific problem is of indispensable importance to the maintenance of community health, a power that would be greatly hobbled by the safeguards necessary for our search of evidence of criminal acts.”

Chief Justice Earl Warren: Yes --

Mr. Charles S.rhyne: Now --

Chief Justice Earl Warren: But of course, in that -- in that case, there was evidence and to show cause and there was this pile of debris out there and there were the rodents running around it in the trail leading to the -- to the house.

And there was -- there was a reason for the health inspector to believe that in all probability, he would find unsanitary conditions in there, but both under -- under the ordinance, this ordinance and in accordance with the testimony that was read to us, the inspector had no cause to come in there that -- that he made known, he -- or that we know about, he just said, “I want to come in --

Mr. Charles S.rhyne: Well --

Chief Justice Earl Warren: -- because -- because I got a right to come in.”

Mr. Charles S.rhyne: Well, Mr. Chief Justice, of course --

Chief Justice Earl Warren: Is there a difference there?

They are very different questions.

Mr. Charles S.rhyne: There is a difference.

There's no question with Baltimore requires more than does Dayton in that particular instance, but I also call your attention to the finding that the City Council of Dayton made about the fact that there exist, these houses which are a menace to the health, safety, morals and welfare, these dilapidated unsafe dangers, unhygienic and unsanitary homes.

So they made a general finding.

And these inspections were made to try and find out whether or not, on the inside, these houses look as safe as they might contend they are on the outside.

And as I've cited the experience there with the unvented gas flues, you just can't tell whether or not they're safe on the inside.

And I think that -- that in the olden days, when they went in to inspect the stoves and flues and things like that, you couldn't tell from the outside whether those things were unsafe on the inside.

And I -- I think the same thing applies here.

And I think that under modern conditions, there's all the more reason to have this type of inspection.

And I think that if this type of inspection were placed on a consent basis, it was suggested by Mr. Justice Douglas in his dissent in the Frank case that -- that one revel a year wasn't too much to pay for this new constitutional right that was suggested there.

Amicus curiae had shown what happens.

Justice Hugo L. Black: I think there's a little difference on whether it was new or old, doesn't it?

Mr. Charles S.rhyne: Well, there might be [Laughs], Mr. Justice Black, between them but I -- I think that it's never been thought to exist before, at least, I've made a thorough search of the -- of the cases and everything else, and I've lived in the municipal field for good many years.

And this is the first time in some 25 years of my work in this field that anybody has suggested that you have such a constitutional right.

But on this Portland, Oregon experience, we have the fact that Portland placed their inspections on a consent basis, and what happened?

Last year, in 1959, from the beginning of the year up until November when we found this amicus curiae brief here on -- after the City Attorney has mentioned, 3234 people in Portland refused to let the housing inspector in.

Now, I think it's indicated that if this type of inspection rhymes to a halt that the difficulty with widespread areas of -- slum areas, breeding disease and fire and epidemic and miscarriages will be a tremendous difficulty.

It will jeopardize the health and safety of thousands.

Justice William O. Douglas: Were -- in those 3000 cases in Portland where they effort -- was there an effort made to get search warrants?

Mr. Charles S.rhyne: Mr. Justice, I can not answer that.

We received the information about that from the City Attorney of -- of Portland.

He put it into that brief amicus curiae.

I cannot answer the question.

I -- I would assume quite frankly that it would be impossible to get a search warrant in nearly all the cases because you just can't tell what's on the inside from the outside.

Justice Felix Frankfurter: Mr. Rhyne, you probably know of how many houses there are in the City of New York that fall under the Tenement House Law, which covers the house occupied by three or more families.

There would run into the hundred of thousands, wouldn't they?

Mr. Charles S.rhyne: Oh, yes, many, many thousands.

Justice Felix Frankfurter: Hundred of thousands.

Mr. Charles S.rhyne: Yes, many thousands.

Justice Felix Frankfurter: Now, there is a -- do you happen to know how many tenement house inspectors there are in New York and must run into the large number?

Mr. Charles S.rhyne: I can't answer that.

There -- there --

Justice Felix Frankfurter: They're numerous, aren't they?

Mr. Charles S.rhyne: Oh, yes.

The city of New York has the largest budget in this country aside from the States.

Justice Felix Frankfurter: Well, now, under the New York law, they make periodic inspections about the safety of the fire escapes, the plumbing, etcetera, etcetera.

Mr. Charles S.rhyne: Heating water.

Justice Felix Frankfurter: Heater.

Could they possibly, could they possibly have the basis that is required for a search warrant?

Mr. Charles S.rhyne: I don't think so, not under --

Justice Felix Frankfurter: How could they?

Mr. Charles S.rhyne: -- the rules that are laid down by this Court.

And I don't think, as I say, you could have a double standard of requirements, one for the criminal --

Justice Felix Frankfurter: Well, that's a sham to say you can get whole sale, you can just get a search warrant at large is in direct defiance of -- of -- so far as the federal laws are concerned of the Fourth Amendment, doesn't it?

Mr. Charles S.rhyne: Very much so, very much so.

Justice Felix Frankfurter: So that the alternative, it's either periodic inspection by the health officers, I don't know what they're called now, we -- we called them (Inaudible) in my days, or let them go without -- without inspections and leave probably millions of New Yorkers to the mercy of landlords, is that right?

Mr. Charles S.rhyne: That's -- that's very true.

And I -- I don't think there could be any better conclusion to -- to my argument.

I will now turn this argument over to my associate, Mr. Duffy.

Justice Hugo L. Black: Do you accept that as entirely true?

Mr. Charles S.rhyne: Mr. Justice Black, may I say to you, I don't think there's anything worst that could happen to the public health than to stop these inspections as they're being conducted out now -- conducting now because we have finally after years of effort saw the city fathers on the idea that -- that the public health is some concern of theirs.

And now, they're doing it -- and they're doing it on a tremendous scale and to stop it would bring about, in my view, tremendous rise in the crime rate and the disease rate in this country.

Justice Charles E. Whittaker: Mr. Rhyne you don't have to accept it as true but you can accept it as coming from one who served the Tenement House Department of New York and had to do with these violations.

Mr. Charles S.rhyne: Thank you.

Justice Charles E. Whittaker: Mr. Rhyne, may I ask you please, sir?

Suppose one of these inspectors in the course of the inspection comes upon contraband or evidences of crime, is he under -- having gain admission under this ordinance, entitled to take cognizance of what he thus sees?

Mr. Charles S.rhyne: Well, unless it has some reference to the structural safety or the sanitation of the home, that is not why he is there, he is there to -- entirely to -- to inspect the condition.

It said it limits his authority to the condition of the dwelling.

Justice John M. Harlan: We haven't got that issue before us.

Mr. Charles S.rhyne: No, the -- the issue is -- is not -- not here.

I would --

Justice Charles E. Whittaker: Might you have the issue here, however, if a warrant were issued, a warrant to search the premises, if it were required and issued and entry was gained under it, then would not, perhaps, the inhabitant of the house be subject to all of the incidental encumbrances inherent in that warrant?

Mr. Charles S.rhyne: Well, that, I would agree that that's an entirely different kind of a situation then -- then exist here, Mr. Justice Whittaker.And that that would bring on a whole host of problems that -- it's rather hard to cope for -- with because this kind of a situation has never been conceived of, as -- as I read history, as being something that you could issue a warrant for it to take in the -- both Ohio court.

They point out that Ohio became a State in 1802 and then in 1803, they -- they issued the formal warrants that's followed there and they're all directed towards a search for criminal evidence not this type of thing.

Justice Felix Frankfurter: Well, if you -- if you -- if an -- if a warrant could be issued for this health inspections, as Justice Whittaker suggest, then under the guidance of that warrant, they could do police work.

Justice Charles E. Whittaker: Is that not right?

Mr. Charles S.rhyne: Well, that's -- that's a possibility that I had not considered because I -- I hadn't thought to that point but I would say yes.

Unknown Speaker: (Voice Overlap) --

Mr. Charles S.rhyne: Maybe turn these people into policemen that they're not trained for.

Chief Justice Earl Warren: All right, that could happen if a warrant was issued, what would prevent the same thing from happening when he goes in there without a warrant and he sees these same things?

Why couldn't he then go to the police and turn it over to them?

It seems to me that that's entirely beside the point.

A man can see other evidence of crime just as well whether he has a warrant or whether he doesn't have a warrant.

Mr. Charles S.rhyne: Well, again, Mr. Chief Justice, one of the interesting things about this whole case, as far as I'm concerned, is that you can't find in the cases any contentions of that kind, that one of these inspectors went in to look at a (Inaudible) fireplace years ago and -- and saw something else and turned it over to police.

Now, Mr. Justice Douglas that you cited [Laughs] one instance in Baltimore that arose rather quickly after the Frank case but -- and maybe you have others.

But I'm saying that in the municipal field in general that I have lived in for good many years.

These types of things have not been raised.

So evidently, these housing and health inspectors haven't been straying beyond what they're authorized to do.

Justice Charles E. Whittaker: Well, am I right --

Justice Felix Frankfurter: Are we right to assume that -- that health inspectors will be doing health inspecting work and not -- not going out of their way or -- or taking on police duty?

Mr. Charles S.rhyne: Well, I certainly --

Justice Felix Frankfurter: Are we right to assume that public officials who take oath to this country obey to their oath and append to what they do what they do or supposed to do and not to do some other things?

Mr. Charles S.rhyne: Well, I would -- I would certainly hope so.

Their only authority here is to inspect the condition of dwellings.

That's --

Justice Hugo L. Black: All the provisions of the Constitution, I suppose, that put some period curve on the activities of officials grow on the assumption, is it not, that they are honest officials?

They won't do anything wrong?

Mr. Charles S.rhyne: Well, Mr. Justice Black, I don't know what comment that I could make there other than that.

And I think that most public officials in this country are honest in trying to carry out their duties.

Justice Hugo L. Black: (Inaudible)

Justice Felix Frankfurter: They stick to their jobs.

They stick to their jobs.

Justice Hugo L. Black: I want to ask you one question about the sanitary officers because I -- several times it's been mentioned that they might be given -- that they are just sanitary officers not police officers.

Do the most of the cities provide that they shall have police jurisdiction to make arrest, if they see a crime, an offense?

Mr. Charles S.rhyne: No, I do not, Mr. Justice Black.

I have never seen that written in the --

Justice Hugo L. Black: (Voice Overlap) about that?

Mr. Charles S.rhyne: Well, I have never seen it written into any city ordinances.

And I mentioned, I have read as many city ordinances as anyone else.

Justice Hugo L. Black: (Inaudible)

Mr. Charles S.rhyne: I -- I think I --

Justice Hugo L. Black: Do you mean that -- that the city or the laws don't usually provide that the sanitary officers shall have police jurisdiction when they wish to exercise it to make arrest?

Mr. Charles S.rhyne: No, I've never --

Justice Hugo L. Black: Can sanitary officer make an arrest (Voice Overlap) --

Mr. Charles S.rhyne: I've never seen that --

Justice Hugo L. Black: -- for violating the sanitary law?

Mr. Charles S.rhyne: I've never seen that provision.

And I think that Mr. Justice Douglas instance over in Baltimore where he sent policemen to make the arrest rather proved some point.

Justice Charles E. Whittaker: Well, may I ask you?

I'm not thinking -- perhaps I'm thinking about another Baltimore case but did not the Supreme Court of Maryland, subsequent to our decision in the Frank case, hold that in an instance where an inspector gone in to make an -- a sanitary inspection and yet run on to some contraband and he took it, and they -- they tried to use it against him in a criminal case in the Supreme Court of Maryland suppressed and said, “You cannot do that”?

Mr. Charles S.rhyne: That's Mr. Justice Douglas --

Justice Charles E. Whittaker: Is that the same case?

Mr. Charles S.rhyne: -- illustration.

Justice Charles E. Whittaker: All right.

Mr. Charles S.rhyne: Thank you.

Justice Hugo L. Black: It's correct, isn't it?

It's a correct illustration, isn't it?

Mr. Charles S.rhyne: Well, it depends on the Weeks decision --

Justice Hugo L. Black: What I say though -- I -- what I mean is it -- it happened do you know about something?

Mr. Charles S.rhyne: Yes, I think it was in the -- not in the Supreme Court of Maryland but in the --

Justice Hugo L. Black: City court of Baltimore.

Mr. Charles S.rhyne: City court of Baltimore.

Justice Hugo L. Black: City court of Baltimore.

Justice Felix Frankfurter: The Supreme Bench of Baltimore.

Chief Justice Earl Warren: Mr. Duffy.

Argument of Joseph P. Duffy

Mr. Joseph P. Duffy: If the Court please.

I would like to add just a word or two in addition to what Mr. Rhyne has said.

Possibly, I -- I might be able to shed some light on some of the questions since I am wholly familiar with the ordinance and the reasons lying behind its adoption.

In answer to you, Justice Frankfurter, as to the number of inspectors, the ordinance itself, which you will have, we will see to it that you are given a copy, does set up a Bureau of Inspection under the head of a chief inspector.

There are no limited numbers if that says that the Bureau of Inspection shall consist of the chief inspector together with such subordinates as he make the -- at the present time, I believe there are seven such inspectors under the head of a chief building inspector.

Justice Hugo L. Black: Seven in -- in all?

Mr. Joseph P. Duffy: In -- in the housing inspection.

Now, we have various other types of inspection, fire inspection, police --

Justice Hugo L. Black: Yes.

Mr. Joseph P. Duffy: -- health inspection and so forth.

But under the housing inspection, there are other seven inspectors.

We would like again to stress the fact that, to us at least, we feel there is a difference between a search and an inspection.

Now, we say that fully cognizant of Judge Prettyman's decision where he refers to Webster's dictionary as search, meaning to look for and inspect, meaning to look at.

I would like only to ask a learned judge one question and that would be whether or not he would rather look for a needle in a haystack or look at a needle in a haystack.

Now, to us, there is just that much difference between a search and an inspection.An examination of this ordinance will disclose that there are five main problems, heating, sanitation, means of ingress and egress, the square foot area which, of course, includes the ventilation and light of the room, and the electrical installations in that dwelling.

Those five are the main issues, the main objects of any inspection, which the inspectors are looking for.

Now, it's evident that your kitchen sink, your electrical installation, your square foot area, your windows, your stairways, your doorways are things that can be looked at.

It is not, as Mr. Rhyne said, something that you have to rummage through a man's personal possessions to -- to see the mere entry into the building.

And each and every one of these objects are there in front of the inspector.

It is not necessary for him to disturb one item of personal property of that property owner or occupant.

Chief Justice Earl Warren: With -- just walking through a home, for instance, inspect the electrical equipment --

Mr. Joseph P. Duffy: The electrical outlets, Your Honor, very definitely.

We find particularly in the rooming house the coffee pot, the toaster, the dryers and -- and this and that --

Chief Justice Earl Warren: But there are other things --

Mr. Joseph P. Duffy: -- are all attached to one outlet.

Chief Justice Earl Warren: There are other --

Mr. Joseph P. Duffy: They overloaded the circuit.

Chief Justice Earl Warren: There are other things that go into the construction of the building, are there not, that -- that have to do with the safety of electrical fixtures and -- and --

Mr. Joseph P. Duffy: Well, I assure you --

Chief Justice Earl Warren: -- you might be going into -- you might be going into the closets where the -- where the fuses are or up in the -- up in the loft where the -- where the connections are made in order to see whether there's fire or danger in that.

I'm not -- I'm not saying it shouldn't be done.

Mr. Joseph P. Duffy: No.

Chief Justice Earl Warren: I just asked you if it is quite as simple as you have said.

Mr. Joseph P. Duffy: Well, I think -- possibly, I -- I have misled you.

We do have, in addition to this housing ordinance, the housing ordinance is aimed primarily at the older type dwelling, where you want to remodel or rehabilitate a -- a used structure.

Now, in addition to this ordinance, we have a building code that would cover any new construction.

And of course, on a new construction and the electrical wiring and so forth that goes into the walls that is hidden, that is covered under the building inspection and not under this.

So that the items, as I say, that this particular ordinance are aimed at, are -- the -- the hazards from fire due to the overloading of the electric circuits.

And there, the only thing that the inspector needs to see is how many outlets are there and how many various types of electrical appliances are being used on that outlet.

Justice Hugo L. Black: Do you have --

Chief Justice Earl Warren: Suppose the householder --

Justice Hugo L. Black: Excuse me.

Chief Justice Earl Warren: Suppose the householder only tried to limit them to that, and they said, “No, we want -- we want to see more than this.

We want to see your connections here.

We want to go into your loft.

We want to go into these closets where the -- where the fuses are and so forth.”

Suppose they said you -- you can't do that because that's a part of your building --

Mr. Joseph P. Duffy: Well, I --

Chief Justice Earl Warren: -- building code, would they have a right to do then?

Mr. Joseph P. Duffy: I think Mr. Rhyne gave you the only answer I can give Your Honor and that is these men have an ordinance to enforce.

And they are not going out of their way, they are not looking for work.

If they go in to the property, they're going to look for these things and nothing else.

Certainly, it is true that they might see some contraband or some violations of some other law.

But as I say, I don't think they're going to go out of their way for that.

They're going to have all they can do to enforce this ordinance.

And seven men in the city, I believe, Justice Frankfurter, you asked the size of Dayton, it is considerably larger than 250.

It's closer to 350,000.

And seven inspectors in a city of that size are going to have their hands full.

So as I say, I don't think -- now, certainly, we can assume, and I'm not, I'm not telling this Court by any means that there might not be an abuse on the part of some of these inspectors.

But wouldn't that same possibility be there even though he had a search warrant?

And even armed with a search warrant, isn't he going to be a little more likely.

Having that legal documents in his hand to abuse his privilege than if he hasn't it.

I --I think so, I don't know.

But I -- I don't think the obtaining of a search warrant is the answer to our problem.

As -- Mr. Rhyne has said, certainly if we wait until a smoke can be seen, the fire or the smell emanates from that structure, we are in a state of emergency then.

And I think we would all agree that when an emergency exists, then, of course, no search warrant is necessary.

Justice Hugo L. Black: Are these housing inspectors, what are generally called in other places, fire inspectors?

I'm little mixed up on it.

Mr. Joseph P. Duffy: No, Your Honor.

We do have a fire inspection service.

Now, that service is conducted by the Division of Fire itself.

This housing is under our building department.

Justice Hugo L. Black: And it looks for what?

What is --

Mr. Joseph P. Duffy: Which?

The -- the housing or the --

Justice Hugo L. Black: The housing.(Voice Overlap) --

Mr. Joseph P. Duffy: The housing looks for just the -- the five major items that I have listed.

There are some provisions in here with reference to rooming houses and the changing of linens and that sort of thing, but with reference to the structure itself, there are --

Justice Hugo L. Black: There are nine inspectors in addition.

Mr. Joseph P. Duffy: The fire inspectors' --

Justice Hugo L. Black: -- how --

Mr. Joseph P. Duffy: -- chief concern is the accumulation of rubbish, that sort of thing, that would breakout into a configuration, means of ingress and egress are covered by the fire inspection.

There are also -- there is no duplicate.

Justice Hugo L. Black: They are very helpful.

I like to have them.

I like to know who they are (Inaudible)

Justice William J. Brennan: Mr. Duffy, do your police officers have any of these inspection duties?

Mr. Joseph P. Duffy: Do the police officers make any inspections?

No, they do not, Your Honor.

No.

In answer to your question also on the matter of arrest, the -- the inspectors have no power to arrest, justice was done in this case.

The housing inspector would have to go to the prosecutor.

An affidavit would have to be obtained.

The warrant would be served by the police department, and the arrest would be made by the police department.

The health inspector had no --

Justice William J. Brennan: I have said on that Mr. Rhyne, but am I wrong in my impression that there are municipalities in which these inspection duties are performed by police officers?

Mr. Joseph P. Duffy: There could be.

It is not true in Dayton.

I -- I don't know.

Again, I believe, Justice Black, you mentioned the matter of the reasonableness of the search.

Looking at the ordinance, our adversaries have never once questioned any particular section of that ordinance as being unreasonable.

I think each and every section contained in the ordinance is based upon public health and safety.

That's what it's aimed at.

And at no time, at any level, has anyone raised a question of the ordinance itself being unreasonable.

Justice Hugo L. Black: But my questions are not directed at that.

I -- I think it's a very reasonable thing to have health inspection, sanitary inspection, fire inspection, building inspection, but the question I asked was on the basis of the reasonableness of how they get in.

I think it gets down to that.

And you justified, which maybe right, largely by the necessity to have them quit and periodically in the times when they get there.

Mr. Joseph P. Duffy: That is what we -- we hope the ordinance will accomplish.

That's what it was designed to accomplish.

And to date, as -- as Mr. Rhyne has said, we know that it has saved the lives and has saved property.

Justice Hugo L. Black: I had asked the question which seemed a little misunderstood, noticing it was the housing inspector and I had thought maybe that was an indication, it was recognized that this was a rather serious thing and one that you'd only -- a duty that you'd only entrust to your real head of the Housing Inspection Department.

Mr. Joseph P. Duffy: Well --

Justice Hugo L. Black: It is not written in that way, isn't it?

Mr. Joseph P. Duffy: No.

It is but made into a division of building inspection with a chief building inspector and on his deputies under him.

Yes, it is recognized as very serious.

Justice John M. Harlan: Could I ask you a question?

How many inspection do you have a year in Dayton?

Mr. Joseph P. Duffy: We do have -- I don't have the figures at hand.

These particular housing inspectors in 1958 conducted over 12,000.

Now, how many in 1959 --

Justice John M. Harlan: Do you happen to know how many there are in Manhattan Island in New York a year?

Mr. Joseph P. Duffy: I wouldn't have any idea.

I imagine it's -- it's tremendous.

But as I say --

Justice Hugo L. Black: How many objections did you have a year?

Mr. Joseph P. Duffy: Actually --

Justice Hugo L. Black: (Voice Overlap) search warrant.

Mr. Joseph P. Duffy: Actually, since this case was filed, the boys have not made any great effort until we have received this Court's decision on the legality of their effort.

They have not attempted to force anyone.

Justice Hugo L. Black: What I meant was, what is it?

Do you have any idea that your city (Inaudible)?

I -- I cannot wholly understand because when I know them, I like to have them so well to get the information, that I wouldn't think you'd have a very wide number of --

Mr. Joseph P. Duffy: Refusals?

Justice Hugo L. Black: -- demands for search warrant where they know what they are.

Mr. Joseph P. Duffy: I would say not over 10, 10 a year at the very most, that -- that would be high.

Justice Felix Frankfurter: How would you get a search warrant with this case?

Mr. Joseph P. Duffy: You couldn't, Your Honor.

You couldn't.

Justice Hugo L. Black: Oh, how did (Voice Overlap) --

Mr. Joseph P. Duffy: Under Ohio law, I assume it's the same all over.

The only way you can obtain a search warrant is under oath and you must, under in your affidavit, you must particularly describe the thing that you're looking for and the thing that you want to cease.

Justice William O. Douglas: But you know --

Mr. Joseph P. Duffy: This men are not going to cease --

Justice William O. Douglas: -- you know what that is, don't you, what you want to see?

Mr. Joseph P. Duffy: This man was told, I believe it was said here, that he was not told what they wanted to see.

He was told, the record will show.

Justice William O. Douglas: Yes, but you know what you -- what you want to see, don't you, before you come in?

Mr. Joseph P. Duffy: The inspectors do, yes.

Justice William O. Douglas: I suppose that you might get a warrant by -- issued by a magistrate, if you showed that there had been no inspection for X years and that X period show that that was a danger point.

Mr. Joseph P. Duffy: I don't think under this -- is this thing specific?

I don't think under this ordinance that they could say there is a violation of any particular section here.

I don't --

Justice Felix Frankfurter: You don't have --

Justice William O. Douglas: You don't have to say that there is a violation.

Mr. Joseph P. Duffy: Oh, yes, you have, to under oath by affidavit, describe the thing you're looking for.

Justice Felix Frankfurter: If (Inaudible) you said everything is perfect.

Everything is hunky-dory in this place, isn't it?

Mr. Joseph P. Duffy: Oh, we don't know.

We have to accept his word because we didn't get it in.

Justice Felix Frankfurter: He said so, didn't he?

Mr. Joseph P. Duffy: [Laughs] As I say that's what we would be faced with.

Justice Felix Frankfurter: He didn't say, “Yes, you can look at it.

I've got a -- I've got bad electric system or the closet or water pipe is -- is out of order but you get me a search warrant,” --

Mr. Joseph P. Duffy: That's --

Justice Felix Frankfurter: -- that you can say there's a disclosure.

You got to get a search warrant on a non-disclosed for all the magistrate knows a perfectly innocence wreck local situation.

Mr. Joseph P. Duffy: Yes, and as Mr. Rhyne said --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Joseph P. Duffy: -- I -- I'm not going to --

Justice Hugo L. Black: -- there's a difference in view, that is you'll find in reading the opinion and the other case (Inaudible)

Justice Felix Frankfurter: You can get a wholesale search warrant.

Would that satisfy the Fourth Amendment?

Justice Hugo L. Black: Well, of course, I don't know anyone who has advocated that.

Justice Felix Frankfurter: Or read the dissent.

Justice Hugo L. Black: I don't think he did advocate it.

I'm sure he didn't (Voice Overlap) --

Justice Felix Frankfurter: He didn't advocate it, it stated it.

He didn't advocate it.

Justice Hugo L. Black: Well --

Justice William O. Douglas: Well, the dissent, I think --

Justice Hugo L. Black: That wouldn't (Voice Overlap)

Justice William O. Douglas: -- speak for itself but I -- I think that really -- that on the basis of -- of experiencing this field you might be able to get a search warrant at a regular interval showing that -- unless it was done within a certain period of time, wouldn't experience show that in some -- some of these fields.

Mr. Joseph P. Duffy: That would --

Justice William O. Douglas: As respects for example electric wiring that the experts know that it must be done at a -- within a certain time to be safe, and a magistrate, I -- I wouldn't see why he would say, “Well, that isn't probable cause.”

Mr. Joseph P. Duffy: I -- I think, Judge, what we would be faced with there would be the different opinions the different persons would have of that very thing that you are asking.

Justice William O. Douglas: Well, that's what magistrates have to -- that's one of the functions they've performed.

They sit and they determine whether this affidavit is sufficient, whether the -- the word of this informer, the word of the man who is signing it, the word of the people mentioning it, they could be counted upon to be relied upon or whether they are reputable, whether they -- whether it's expert opinion, whether it's just (Inaudible) opinion and all that.

Mr. Joseph P. Duffy: Well --

Justice William O. Douglas: That's just the term in all those cases.

Mr. Joseph P. Duffy: Yes, but the -- the magistrate is going to say 10 years and the housing inspector says, “No, we should do it every two years.”

So where -- where are you?

Justice William O. Douglas: Well, how -- how do you know he is going to say that?

If he is --

Mr. Joseph P. Duffy: Well, I'll say you -- you're running into that possibility that there is going to be --

Justice William O. Douglas: Well, certainly.

That's -- that's a part of our system of government that the -- that the policeman or the -- it is not the lord and king of -- of the creation.

He -- he is -- he submits himself to the magistrate.

That's true in every case under the Fourth Amendment.

Mr. Joseph P. Duffy: Well, if --

Justice William O. Douglas: What you're talking about is that it'd be much better if we didn't have the Fourth Amendment.

Mr. Joseph P. Duffy: I -- I can see -- say that it is possible to do it that way but if it is done that way, the housing inspector would be spending 90% of his time in court rather than out making the inspection.

Justice Hugo L. Black: Why would you when you only have 10 a year?

Tense people do not object to (Voice Overlap) --

Mr. Joseph P. Duffy: Oh, you mean only do you get it in the case of an objection.

Justice Felix Frankfurter: Yes.

Justice Hugo L. Black: Do you know who he is?

Justice William O. Douglas: (Inaudible)

Mr. Joseph P. Duffy: As Mr. Rhyne said at the minute the citizens learn that the thing is optional, they're all going to say no.

Justice Felix Frankfurter: Well, part from that --

Justice Hugo L. Black: That's a pretty strong presumption.

Mr. Joseph P. Duffy: Well, he has the Portland experience to show that.

3000 refused also.

Justice Felix Frankfurter: But, Mr. Duffy, if it's unconstitutional to go into a house without a search warrant, I don't see how any law has sort of driving the city authorities who say, “Yes, go in.”

And if he -- he may let you in, it's unconstitutional.

Mr. Joseph P. Duffy: I don't think it is unconstitutionally --

Justice Felix Frankfurter: But I don't say it is, but I'd say if this Court says that -- that you can't ask him without a search warrant and I don't think you ought to impose upon the community entry without a search warrant on this chance that they want to oppose it.

Mr. Joseph P. Duffy: The other matter, your tax assessor, now, Ohio law, and I assume the law is the same all over the country, has every right to go in a man's property for the purpose of appraising it -- that property.

And I've never yet heard anyone say that he can't come in without a search warrant.

Chief Justice Earl Warren: What is the penalty if he doesn't under your tax laws?

Mr. Joseph P. Duffy: Under our Ohio tax law, it's a 50 -- an increase 50% penalty on the amount of tax.

Chief Justice Earl Warren: Yes.

They put it, but they don't force their way in or they don't arrest him.

Mr. Joseph P. Duffy: The -- the statute has given him the right to go in, but as you say, if the property owner says, “No, get a search warrant --

Chief Justice Earl Warren: They put an arbitrary assessment.

Mr. Joseph P. Duffy: That's right.

Chief Justice Earl Warren: If he wants to take that instead of searching, as he can.

Mr. Joseph P. Duffy: That's correct.

Chief Justice Earl Warren: But it doesn't -- but it doesn't put him in jail as you can this man.

That's the difference.

Mr. Joseph P. Duffy: That's correct.

There's no criminal -- there is no incarceration --

Chief Justice Earl Warren: Yes.

Mr. Joseph P. Duffy: -- connected with the penalty.

Thank you sir.

Chief Justice Earl Warren: Mr. Blakely.

Argument of Elbert E. Blakely

Mr. Elbert E. Blakely: Mr. Chief Justice, may it please the Court.

I think we should get back to fundamentals here at some point.

Now, this case reminds me of a conversation I had with an all time practitioner here in the city.

I told him that my client in Dayton was arrested and jailed because a housing inspector attempted to come in his house without any process at all.

And he said, “Well, Blakely, I thought that was settled with King John and the Baron back in Runnymede in 1215.”

Now, I think the case we have here is just as elementary as that.

And we're getting away from that.

A man's home is no longer his castle.

If we permit these people let -- and I think that with all of due respect to Mr. Duffy here, I don't think he explained to us too thoroughly what this man told Taylor and if he had something to controvert, I think it should have been brought out at the hearing on this matter, but it was not.

So let's proceed next to the ordinance itself.

You put in the hands of the housing inspector without any independent or any intermediate judicial officer the right to go in and inspect an unlimited number of times.

There is no word said in here about whether he inspect in the morning and if he gets teed off, to excuse by slang remark, maybe comes back in the afternoon or he could send the -- maybe he wants to come in the afternoon and get in the evening because --

Justice John M. Harlan: Will that would raise a different question, wouldn't it?

Mr. Elbert E. Blakely: Well, that's what the ordinance says, as I read it.

Justice John M. Harlan: No, but you -- have you got any cases where a man has been hounded by these people, by these inspectors?

Mr. Elbert E. Blakely: We have the observation of the judge of the Common Pleas Court that the ordinance authorizes an unlimited number of inspection -- judge's power.

Justice John M. Harlan: Well, you would have a -- you would have a different certification if you have that inspector (Inaudible)

Mr. Elbert E. Blakely: If it became a question of harassment --

Justice John M. Harlan: Yes.

Mr. Elbert E. Blakely: -- you can see if they will work.

We don't have that case before us.

That's true, Your Honor.

But the ordinance does authorize.

Now, as to the condition of this man's house and the objectives of this ordinance, of course, it's to eliminate rundown houses, to eliminate slumps, to protect the people.

Well, let's -- like we say about some.

Everybody is opposed to that.

Everybody is opposed to rundown houses.

Everybody is opposed to houses becoming slumps.

We're all -- we're all against that, but all the evidence here is that this house is as clean and neat as pent inside and out.

Justice Hugo L. Black: You don't think we should decide this case on that basis, do you?

Mr. Elbert E. Blakely: I think we should -- the case should be --

Justice Hugo L. Black: The constitutionality of it?

Mr. Elbert E. Blakely: On the arbitrarily --arbitrariness and the capriciousness of this ordinance, I think it clearly violates the Fourteenth Amendment.

I don't know where they advance it, Your Honor.

Justice Hugo L. Black: Well, as I understood you to be arguing that the evidence shows the house was cleaned, therefore, it didn't need inspection.

I don't -- I don't suppose that's was what the case has cited on by the Court was.

I thought they've decided that your ordinance -- the reason they could raise it by habeas corpus was that your ordinance was unconstitutional.

The lower court and the upper court held it was constitutional.

Mr. Elbert E. Blakely: That is correct, Your Honor.

Well --

Justice Hugo L. Black: They could if it had been raised on habeas corpus, if it was a question of the guilt or innocence of the defendant.

Mr. Elbert E. Blakely: I don't think it could, Your Honor.

I like to make one observation here about securing process for entering these houses.

And I call the Court's attention to the dissent in Frank v. Maryland, page 11, Mr. Justice Brennan speaking.

The second paragraph on page 11, “England, a nation no less mindful of public health than we keenly conscious of civil -- civil liberties has long proceed on the basis that where a citizen denies entrance to a health inspector, a search warrant is needed.”

I think that's a clear situation here.

It may call up for legislation but the -- the legislature is set to provide legislation if that is needed.

Justice Felix Frankfurter: Mr. Blakely, have you, at any chance, read an article in a very recent issue of the Chicago -- Chicago Law Review by an English lawyer dealing with the English law and showing that they serious limitations to the accuracy of that statement or what the English law is?

Mr. Elbert E. Blakely: I haven't read the -- the article that Your Honor referred to.

Justice Felix Frankfurter: I think you might have enlightened.

I don't say that that governs us but that isn't quite the usual.

Mr. Elbert E. Blakely: Well, I -- I do think that it's possible to get appropriate process where there is an objection to the entry of the housing inspector.

Now, we are told that this ordinance was passed pursuant to the police powers of the State and that the common counsel has made this legislative determination of facts that no warrant is needed.

And I would call the attention of the Court through its own decision here, mere legislative here.

I have taken the place of fact in the determination of issues involving life, liberty or property clearly transcends due process of law.

That's Manley v. Georgia, it's cited in our brief.

And further, as to the questions of police power legislative enactments in the exercise of police power are limited requirements for due process -- are limited by the requirements of due process law -- of law under the Fourteenth Amendment, Whitney v. California.

And as to whether this would unduly hamper or restrict the State to require process before the entry of a home or a private home, there is nothing in this prohibition to -- which tends to lessen the power of the State to regulate for the public welfare but the guarantee of the due process demands that the law should be reasonable -- should not be unreasonable, arbitrary or capricious.

And that the mean selected shall have a reasonable, a real and substantial relation to the objects sought to be obtained, that's in Nebbia v. New York, 291 U.S. 502.

Those cases were cited in the brief.

And again, the last -- a question that has been raised here that since reference was made to the Fourth Amendment rather than the Fourteenth Amendment used the case properly in court and stated here the philosophy of the Fourth Amendment.

And thus, the Fourteenth Amendment was well expressed by Mr. Justice Butler speaking in -- for the majority in Agnello v. United States, 269 U.S. 20, 32, “The search,” -- and this is a quote, “The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws.”

And I think when we get to the heart of the question as to whether we're in court or not, I think only this Court can say.

And I would refer to the case of Lovell v. the City of Griffin, Griffin, Georgia quoted at 304 U.S. 444.

This is a case that has been cited many, many times since it was originally decided by this Court.

And the meat of this is we think that this question was adequately presented and was decided in the instant case whether it was so presented and whether it's decided is itself a federal question.

And a long line of decisions is referred to in this decision.

More recently, this Court, speaking through Mr. Justice Black ion Staub v. the City of Baxley, Baxley, Georgia and reported in 355 U.S. 313, “Whether,” and this is a quote and reversing the State of Georgia, this Court stated, “Whether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law, and where a case coming from a state court presents that question, this Court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken by the state court.”

And that's how we contend primarily that we're in this Court.

And this Court itself will decide whether we are or not.

I would also refer the Court, this is also in a brief in Carter v. Texas.

This is a very early case cited at 177 U.S. 442 or they reported at 177 U.S. 442 and that is also cited in the Lovell v. Griffin case.

To -- to delve into this question a bit further as to how the case maybe presented to this Court, it appears from all the cases that counsel has been able to research on the subject that no particular form of words or phrases are essential if the complete record shows by clear intendment, the claim of invalidity of the state statute was timely raised in the state court.

The first reference that I have found to the Fourteenth Amendment, Equal Protection and the Due Process Clause is in the reply brief of Mr. Eaton in the Court of Common Pleas and the trial court.

This is -- quote appears in the appendix, page 42.

Justice Hugo L. Black: Appendix to what?

Mr. Elbert E. Blakely: I would say substitute brief, Your -- I beg your pardon, Your Honor.

Substitute brief, the appellant substitute brief.

There is a brief and there is an appendix and -- at page 42.

This is a reply brief in the Court of Common Pleas in Montgomery County, Ohio, case number 111465 (Inaudible) in ex rel. Earl Taylor, Plaintiff, v. the City of Dayton, Defendant, reply brief of the respondent, excerpt, “In addition to,” and this is a quote, “In addition to a violation of the search,” and this is quoted, “search and seizure provisions of the Constitution,” that obviously referring to the Fourth Amendment, the Federal Constitution, “it is the contention of respondent that the acts taken and threatened violate “Due Process” and “Equal Protection” clauses of the Constitution,” see Connor v. Board of Commissioners of Logan County, 12 F. 2d 789, whether that federal case is so particularly in point, I'm -- I wouldn't urge either way.

But I would call Your Honor's attention to the --

Justice Hugo L. Black: You -- you have just referred to page 42.

Mr. Elbert E. Blakely: 43.

Justice Hugo L. Black: Was that in the brief, this quotation from, what was it, Colorado?

Mr. Elbert E. Blakely: That is also there, Your Honor.

That --

Justice Hugo L. Black: What sentence immediately preceding it?

Mr. Elbert E. Blakely: I'm afraid --

Justice Hugo L. Black: You have the brief there?

Mr. Elbert E. Blakely: Of the Ohio Court?

I have it here, Your Honor.

Justice Hugo L. Black: On -- on page 42, you say in conclusion, we wish to cite the Court to Wolf versus Colorado, which reads as follows, quote.

What's that taken from?

Mr. Elbert E. Blakely: That is the brief of the respondent, namely, Mr. Eaton in the trial court.

Justice Hugo L. Black: Is it the one you have before you and we're reading from there?

Mr. Elbert E. Blakely: And then on the following page, Your Honor --

Justice Hugo L. Black: I'm -- I'm talking about what comes immediately before these quotations you have on page 42 in that brief?

Mr. Elbert E. Blakely: Oh, that's -- the brief itself is on file in this Court.

I -- I don't have the -- the verbiage covered by the ellipses, Your Honor.

It is in the brief itself.

It has concerted.

Justice Hugo L. Black: Oh, I thought you had it before you then?

Mr. Elbert E. Blakely: No, I do not have it.

It's in the Court (Inaudible) Your Honor.

And of course, in this quotation from Wolf v. Colorado, that's based entirely on the Due Process Clause of the Fourteenth Amendment and it's cited for that purpose.

That profound others, I -- as I read clear English.

Chief Justice Earl Warren: And the other quotation from the reply brief was in the trial court also.

We'll recess now, Mr. --

Mr. Elbert E. Blakely: Thank you.

Print this transcript Transcript: 

Argument of Greene Chandler Furman

Chief Justice Earl Warren: You may proceed, Mr. Furman.

Mr. Greene Chandler Furman: Mr. Chief Justice, if it please the Court.

Mr. Justice Black, during the lunch and recess, I've tried to clarify the question that you asked me.

If I may call your attention to the note on page four of the brief, the appellant substitute brief.

It is stated, “The existence of a substantial federal question was raised by counsel in all courts below and in briefs the filed with all such courts.

Such briefs do not appear in the transcript of record, but have been certified and filed with the Court.

Now, the clerk assures me that those briefs that we had certified and filed here are available and that -- I know that I'm repeating myself.

That I explain --

Justice Hugo L. Black: Think Mr. -- I think Mr. Rhyne said that no one of them directly raised this question.

Mr. Greene Chandler Furman: The language I read to you, the Court, particularly to Your Honor before lunch, namely the replied brief of the respondent, namely the -- Earl Taylor in the Court of Common Pleas on page 43 of the appendix.

I don't know how much more explicit the language could be, Your Honor.

Justice Hugo L. Black: Well, this -- I have the brief before me and I see that there's more quoted and it seem to be quoted from what you have in your record.

That brief does say “In conclusion, we wish to cite to the Court the Wolf versus Colorado, the briefs that followed.

Arbitrary intrusion of privacy by the police is prohibited by the Due Process Clause of the Fourteenth Amendment.”

Mr. Greene Chandler Furman: I -- I think --

Justice Hugo L. Black: All of that was a quote.

I didn't know that.

That's what I'm trying to find out.

Mr. Greene Chandler Furman: Yes, Your Honor.

Well, they are available and we thank Your Honor for raising the questions that was not explicit as it should have or could have been.

Furthermore, I think as to the reason of the constitutional question, it might be well to refer to Mr. Eaton's opening statement found on page 17 of the record.

The second paragraph, the first one from the top of the page rather.

I mentioned that the word “we”.

“We are here this morning on the question of the merits of the habeas corpus petition and of course, it is a contention of the defendant, Mr. Earl Taylor, that the affidavit filed against him does not contain for a sufficient to constitute a criminal charge and that the ordinance so far as it permits the entry of these inspectors into his private home without a search warrant is unconstitutional.

I think with that language before the Court, he is bound to take judicial knowledge of the Federal Constitution.

I don't see how that conclusion could be avoided because it's inescapable.

And to indicate that the Court was aware of this question, I referred to page 32 of the record and this is a comment of the trial court, Judge Thomas.

And it's the second and third paragraph from the top.

They Court, “That is true, Mr. Duffy however, we are in this issue concerned with the major issue and that is as to the constitutionality of the ordinance as it apply -- as it applies to this particular case.

I think that it is possibly the chief issue we have here and also a collateral one.

I believe that would be subject to this inquiry that in charge -- that is the charge as it applies to this gentleman.”

Now, his personal reasons may throw us all for our cause a little bit.

That is the only reason I'm commenting upon it at this time.

I think such we're discussing what the trial court had to say.

I'd be well to refer to remarks of Judge Thomas on page 11 of the record.

This is the second paragraph from the top.

“The proponents of ordinances which provide for unlimited number of inspections,” I've forgotten which one of Your Honors asked me about how many inspections could be held and that is my authority for that remark, the conclusion of Judge Thomas of the trial court.

That's in the -- “For an unlimited number of inspections of private homes at reasonable hours, contend that the execution of this ordinance does not violate the right to privacy in homes, provision of the constitution.”

They don't see what else the trial court could have been referring to other than the Fourteenth Amendment, Due Process Clause of the Fourteenth Amendment.

They could clearly have that in mind, although he didn't use the words as I'm using them here now, but I think he expressly had that in mind when he used this language here.

Chief Justice Earl Warren: Well, you did raise a state constitutional question too, didn't you?

Mr. Greene Chandler Furman: As the search and seizures provision of the state constitution and the Fourth Amendment of the Federal Constitution are identical as that --

Chief Justice Earl Warren: Yes.

Well you -- both of them --

Mr. Greene Chandler Furman: (Voice Overlap)

That is correct except for two words and in passing on one is, he may have confused him some, but -- and not separate them as we would now like for him to have done, but I think the fact remains that even though he's -- my associate said in the Gibbs case, he may have done it inartistically, but it was done nevertheless.

That's the position of the appellant.

That's the position of counsel and --

Justice Charles E. Whittaker: That was the reason of counsel (Inaudible)

Mr. Greene Chandler Furman: That was the purpose of my observation Mr. Justice Whittaker.

That reference was made to both the Fourth Amendment of the Federal Constitution and the like provision which was Section 14, Article 1 of the Ohio Constitution.

On the -- I would say have remarked earlier the languages are identical except for the variation of two words.

Does that help Your Honor?

Have I confused you further attempting to --

Justice Charles E. Whittaker: (Inaudible)

Mr. Greene Chandler Furman: I grant you that, Your Honor.

And I don't wish to appear positions that captures with the Court, but once counsel has it raised a federal question properly.

You know, it's out of his reach and he can't tell if he's honorable.

Now, you will rule on my Fourteenth Amendment provision which I've raised in urgent and in persuade but I think all of us had been in trial courts realized that there's only so far been going urging the Court to rule a certain way.

And I think his reference to the Equal Protection and the Due Process Clause and in his brief to the trial court, certainly, made that Court aware of what he was referring to.

Justice Hugo L. Black: Is this the brief that was filed with the court that wrote the opinion Mr. Justice Whittaker is referring to?

Mr. Greene Chandler Furman: The Court of Common Pleas, Your Honor.

Justice Hugo L. Black: Court of Common Pleas.

Mr. Greene Chandler Furman: That is correct, Your Honor.

Justice Hugo L. Black: And I see that it refers but four times to the constitutions.

And also, it refers to the Due Process Clause as we read from it the information of Wolf.

What -- what other constitutions could he be referring to except to state in the federal?

Mr. Greene Chandler Furman: I don't think there are any others to refer to, Your Honor and is supposed unfortunate that he didn't specify in expressed words when he was referring to the -- to Article -- to Section 14 of Article 1 of the Ohio Constitution.

He has in places and he has pointed out the similarity almost identical words, but there is an intermixing of the phraseology in his comments and the comments of the Court too.

It's most unfortunate but --

Justice Hugo L. Black: Well, it has brief submitted to the Court here in which he said, cited to the Court the Wolf versus Colorado saying an arbitrary intrusion prohibited by the Due Process Clause of the Fourteenth Amendment?

Mr. Greene Chandler Furman: That was before the trial court, Your Honor.

Justice Hugo L. Black: Just before the trial court has wrote there?

Mr. Greene Chandler Furman: That is correct, Your Honor.

Justice Hugo L. Black: And it also goes on to say prior to the laws, that is the constitution and they overstepped the bounds of reasons and they tried to be Sunray.

Mr. Greene Chandler Furman: I'm -- I'm well aware of -- of that intermixing of phraseology there, Your Honor.

I have this dangerous signal, that time is almost out and I have an explanation to make here with extreme humility.

There are very -- three very important cases that counsel intended to have in his reply brief and due to the pressure of time or to -- to lapse of memory or because -- I don't have any excuse, they will omitted.

And the answer, the question as to how explicit do you have to raise a constitutional question in the trial court.

This is a long line of cases and it distinguishes primarily the principal case relied upon by the appellee, namely Lynch v. New York.

And cases wish I wish to cite, well, number one, St. Louis, Iron Mountain & Southern Railway Company, this covered 243 U.S. 592.

I'll repeat St. Louis, Iron Mountain & Southern Railway Company, discovered 243 U.S. 592.

The second one is Minnesota v. National Tea Company, 309 U.S. 551.

Justice Charles E. Whittaker: (Inaudible)

Mr. Greene Chandler Furman: 309, Mr. Justice Whittaker, 551, page 551.

Justice Felix Frankfurter: Well, the second case you cite, isn't that the case where this Court sent the case back to the Minnesota Court to find out whether they did deal with a federal question?

Mr. Greene Chandler Furman: That is indicated Your Honor, because --

Justice Felix Frankfurter: Well, that is not indicated.

That's what we did there, isn't it?

Mr. Greene Chandler Furman: Because it was not expressed enough but nevertheless, it did not affirm for the reason urged by the --

Justice Felix Frankfurter: No, no, no.

Mr. Greene Chandler Furman: -- the appellant.

Justice Felix Frankfurter: It said that -- we couldn't tell if it was ambiguous and therefore, the Minnesota Supreme Court was asked a state whether it did or didn't pass on the federal constitutional point.

That's right, isn't it?

Mr. Greene Chandler Furman: That is correct, Your Honor.

That's -- that's the language I have here.

Justice Charles E. Whittaker: (Inaudible)

Mr. Greene Chandler Furman: That's correct, Your Honor.

I don't think that's conclusive on this Court though.

Justice Charles E. Whittaker: Well, it did decide it for an ambiguous (Inaudible)

Mr. Greene Chandler Furman: I --

Justice Charles E. Whittaker: (Inaudible)

Mr. Greene Chandler Furman: That is correct, Your Honor.

We -- we ask that this Court affirm the judgment of the trial court.

That's -- that's why we're here urging that the judgment of the trial court be affirmed.

But --

Justice Hugo L. Black: If you are -- if you are correct however, that is being raised in the brief, I assume that the fact that this Court, I don't mean the Fourteenth Amendment question is raised in the brief to the Court.

I assume that the fact that the Court didn't pass on it specifically, wouldn't eventually raise it here.

Mr. Greene Chandler Furman: I -- I don't think so.

That's the purpose of these cases I'm citing Your Honor that --

Justice Charles E. Whittaker: Is the Court (Inaudible)

Mr. Greene Chandler Furman: I think it did, Your Honor, very definitely.

Yes indeed.

But --

Justice Hugo L. Black: You mean the Fourteenth Amendment?

Mr. Greene Chandler Furman: Well, the -- the language used here which Mr. Justice Whittaker was reading, it says the Fourth Amendment.

Justice Hugo L. Black: That's right.

But suppose you had presented 15 times question of the Due Process Clause and the Court decided he wouldn't put it in his judgment.

Would that affect your right to appeal and raise the question?

Mr. Greene Chandler Furman: That's the whole basis of the appellee's position as we honest --

Justice Hugo L. Black: I don't understand he raises that.

I understand he says you didn't sufficiently raise it, not that the Court was -- you do compel to show in the court's judgment that if passed on it on -- and that it is judgment.

Mr. Greene Chandler Furman: I think as the trial judge said that --

Justice Hugo L. Black: But suppose they couldn't keep this Court from deciding the constitutionality of -- of the question if it was raised properly --

Mr. Greene Chandler Furman: We assert --

Justice Hugo L. Black: -- simply by leading it out the judgment.

Mr. Greene Chandler Furman: That's our position, Your Honor.

That -- that's the position of the -- the appellant here 100%.

And as I tried to explain to Mr. Justice Whittaker in all humility, once these questions are raised in the trial court, it's beyond counsel to determine how we rule it.

There are ways we would like to affirm the rule but --

Chief Justice Earl Warren: Would you -- would you give us that third case --

Mr. Greene Chandler Furman: Yes, Your Honor.

Chief Justice Earl Warren: -- before you sit down?

Mr. Greene Chandler Furman: Yes sir, Williams v. Kaiser, 323 U.S. 471.

I -- and the purpose in citing all of these cases is to show that the constitutional, the federal question does not have to be raised in precise language.

Thanks, Your Honor.

Justice William J. Brennan: Mr. Rhyne, before you leave, would you mind telling me if you can help me with the question I put to your colleague namely whether there's any practice that you're familiar with in municipalities to have police officers enforce these inspection ordinances?

Argument of Charles S. Rhyne

Mr. Charles S. Rhyne: I'm not, Mr. Justice Brennan, although that maybe in -- in very small cities where you have a police officer who serves about every function that there could be such a situation by --

Justice William J. Brennan: Your association is largely in the larger municipalities of it?

Mr. Charles S. Rhyne: Well, no.

It's about 1200 cities, some of which are very small.

But the ordinances that I have seen and observed in this field do not have the police in the picture at all.

Justice William J. Brennan: Thank you.