Earl Warren: Number 94, Frank Bonetti, Petitioner, versus William P. Rogers, Attorney General of the United States. Mr. Forer.
Joseph Forer: Mr. Chief Justice, may it please the Court. This is a deportation case. The petitioner, Frank Bonetti, was born in France of Italian parentage. In 1923, when he was 15 years old, he entered to the United States and then was admitted for permanent residence as a quota immigrant. In the depression year of 1932 in Los Angeles, he joined the Communist Party of the United States. And sometime during 1936, he dropped out of the Communist Party. He understood that communism meant the public ownership of the principal means of production. And he did not believe that the Communist Party stood for the violent overthrow of the Government. It is interesting that in both 1932 when Bonetti joined the Communist Party and 1936 when he left the Communist Party, the presidential ticket in California, in those election years, included candidates on the Communist Party ticket. Some months after Bonetti left the Communist Party, on June 28, 1937, he left the United States and went to Spain to fight on the side of the Spanish Republic in the Abraham Lincoln Brigade. He did so as he testified because he felt that Franco, in the Franco rebellion, was an instrument of Mussolini and Hitler and he felt that the Rome-Berlin Axis were not stopped in this particular aggression in Spain, they would persist in aggression until the a World War would start. Bonetti was in active combat in Spain, was wounded and lost a foot. Late in September of 1938, he returned to the United States with a visa and was stopped (Inaudible). He was given a hearing before a Board of Special Inquiry to determine whether or not, he should be admitted. At this hearing, he testified fully to his having been a member of the Communist Party between 1932 and 1936 and he testified that he had fought in Spain on the side of the Spanish Republic. The Board of Special Inquiry ordered him excluded. That was appealed and that decision by the Board of Special Inquiry was reversed by the -- in Washington, by the Immigration and Naturalization Service. So that on October 8, 1938, for the second time, but that he was admitted for permanent residence, under the new quota of for that year, as a quota immigrant and as a new resident. Since that day, of October 8, 1938, when he was readmitted, he has resided in the United States, in California.
Speaker: Could he been excluded in 1938, on the basis that are (Inaudible)
Joseph Forer: He could've been excluded in 1938 for just about any reason that the immigration authorities wanted to exclude him. He could not have been -- there was no provision of law in 1938 which excluded persons who had previous -- who had before been the members of the Communist Party.
Speaker: Is that the law now, or wasn't been --
Joseph Forer: That is correct. Now, he has resided in the United States since his second entry in October 1938. In the summer of 1939, he did leave the country for a one-day trip to Mexico and returned the same day or the next day. He has not belonged to the Communist Party since he left it in 1936, so the -- he has not belonged to the Communist Party at any time since he came back to the United States and for some time before that. In 1942, Bonetti married a native born American citizen, to whom he is still married and he became the stepfather of her two children. In 1940, Bonetti obtained his first citizenship papers and in May of 1943, he filed a petition for naturalization. The Immigration and Naturalization Service interviewed Bonetti in 1944 and 1946, about his citizenship application. In those interviews he testified to having been a member of the Communist Party in the period mentioned and to have been fought in Spain. His application was not further processed, and it wasn't passed, and he just never became a citizen. On September 23rd, 1950, 14 years after Bonetti left that party, the Congress enacted over the President's veto, the Internal Security Act. Also known as the McCarran Act, Section 22 of that Act, "Provided for the first time, for the expulsion of any alien who was at that time was entering the United States or has been at anytime thereafter, a member of the Communist Party of the United States." A year or so later in October of 1951, the Immigration and Naturalization Service instituted deportation proceedings under this provision against Bonetti and he was ordered deported under that provision. In the deportation proceeding, the sole evidence of his past membership in the Communist Party, which was the ground on which he was deported, consisted of Bonetti's own admission, namely, the testimony that he gave before the Board of Special Inquiry at his exclusion hearing in 1938, the statement that he made on his alien registration form which asked the question what organizations had he ever belonged to. The statements he made to officials of the immigration in -- of the Immigration and Naturalization Service, when they interviewed him in 1944 and 1946 on his application for naturalization and the statement he had made to an Immigration and Natural -- Naturalization Service Investigator. After Bonetti had exhausted his administrative remedy, he filed suit here in the District of Columbia for declaratory judgment and to enjoin the deportation, the District Court gave summary judgment in favor of the Government. This was affirmed by the Court of Appeals. Now, the statute under which petitioner was ordered deported, that is the Internal Security Act, as well as the current Immigration and Nationality Act, which the court below mistakenly could apply, but which technically does not apply, but we make no point to that because obviously, both acts should have to be interpreted the same. But both statutes provide for the expulsion of any alien who was a member of the Communist Party at the time of or after entry. Neither statute provides for expulsion of an alien merely on account of Communist Party membership before entry. In this case, the alien made three entries, in 1923, 1938 and 1939, respectively. He was a member of the Communist Party after his first entry. He was not a member of the Communist Party after or at the time of, either of his last two entries. So the precise question of statutory construction, which is involved here, is which of petitioner's three entries is included in the statutory phrase which expels aliens for Communist Party membership, "After entering the United States." Now, we believe that the statute refers only to Communist Party membership after the last of several entries and if we are right, then the petitioner is obviously not deportable under the statute. But before turning to the affirmative reasons in favor of this interpretation, I want to deal first with the grounds on which the court below held that after entry or after entering in the statute, means after any of several entries or after any (Inaudible). The court below pointed out that the word "entry" is defined by the Immigration and Nationality Act, to mean subject to limitations that don't apply here, "Any coming of an alien into the United States from a foreign place." This definition corresponds to and was derived from the case definition which had evolved prior to the Immigration and Nationality Act. The court below said, “Well, since an entry is any coming, a statute which expels for a membership after entry means membership after any entry." Now, this is plainly a non sequitur. The statutory definition of entry merely describes what kind of an arrival constitutes an entry. The phrase, "any coming" is used in the section qualitatively, as it were to mean a coming of any kind subject to certain specified exceptions. For example, it means the coming for permanent residents or as a visitor, or as a seaman, or in transit, or as stow away. The exclusions from the definition are also qualitative. For example, an entry doesn't include a coming preceded an involuntary departure, nor does it include a coming which consist of a passage by sea from one American port to another, although exceptions being -- having been first developed by cases in this Court. Now, it's simply a distortion of language to treat a definition of what kind of conduct, what kind of coming constitutes an entry as -- is positive of which particular coming of several comings, is referred to by other sections of the Act. The fact that a -- an entry is any kind of coming just does not mean that every statutory reference to entry means any entry.
Felix Frankfurter: Where there's coming, the word, "coming" comes from --
Joseph Forer: The -- well, the word, "coming" is in the statutory definition which in turn is derived from --
Felix Frankfurter: Where - where is that in your --
Joseph Forer: The statutory definition?
Felix Frankfurter: Yes.
Joseph Forer: On page 4 of my brief. And I've been referring to that in explaining why the definition is a qualitative one as to the kind of coming.
Felix Frankfurter: Now, where does the -- what's the origin of -- the statutory origin or -- or its antecedent or its answers to?
Joseph Forer: It goes back to cases in -- you mean of the definition of entry?
Felix Frankfurter: No, coming. Where is it? Mean any coming if that --
Joseph Forer: It -- It goes back to decisions in this Court such as Lewis against Frick and following that the Volpe and Claussen cases.
Felix Frankfurter: What you mean is that this Court in construing what an entry was --
Joseph Forer: That's right.
Felix Frankfurter: -- used that phrase and then the -- Congress picked it up, is that it?
Joseph Forer: Yes. That's what I said. The -- the statutory reference is derived from and based on language used by this Court repeatedly.
Felix Frankfurter: (Voice Overlap) now, what I want to know is when did the phrase -- when did Congress first in -- by way of definition, the word, "coming".
Joseph Forer: Well, as far as I know, this -- the Immigration Nationality Act is the first time that Congress defined the phrase in so many words. Up to then the phrase was defined by this Court. Now --
Speaker: If the case is that had defined the phrase did not give it to connotation that you call a qualitative connotation.
Joseph Forer: They did.
Speaker: Does it --
Joseph Forer: That's my point and that's what I'm coming to. The case definition was spelled out in litigation which centered about the question of what kind of arrival constitutes an entry. It did -- did not center about the question presented here which is -- which of several entries is critical for determining status. And this includes the Volpe and Claussen cases on which the Government relies. In the cases in this Court, which developed the meaning of the term, "entry", it was always assumed that the last entry was the critical entry in determining status and the question which was always argued and considered was whether or not, a second coming was by its nature, an entry. For example, the original problem was an assertion that when an alien who has resided in this country left the country without giving up his domicile, and tending to come back, stayed out for a brief period and then returned. And it was argued that his return was not a coming because -- it was not an entry, because entry meant coming in for a permanent stay.
Felix Frankfurter: Let me -- let me --
Joseph Forer: Yes.
Felix Frankfurter: -- put -- put myself, if I may. Do I understand you that coming legislatively used, the word, "coming", legislatively used, first appears in the 1952 Act?
Joseph Forer: That is correct.
Felix Frankfurter: Prior thereto, this Court, by way of explaining or applying the word, "entrance" have been in the immigration laws so far as I know, well, all my life that long, 50 years something like that. That in construing what an entry is, they used this Court in decisions used, any coming in the sense of -- in a temporal sense, is that right?
Joseph Forer: Well, they didn't --
Felix Frankfurter: Meaning by that, by coming to them at any time you're coming again, or you --
Joseph Forer: No.
Felix Frankfurter: -- may have been here less.
Joseph Forer: I am saying the opposite. I'm saying that.
Felix Frankfurter: No. But so far as the -- I -- I'm not arguing now. Or not the meaning to present any argument --
Joseph Forer: I'm --
Felix Frankfurter: -- but I -- I just want to know what the facts are.
Joseph Forer: That is when --
Felix Frankfurter: (Voice Overlap) is this -- the decisions of this Court which was then legislatively adopted, gave the word, "coming" in construing the -- the statutory phrase, entry, a meaning other than touching the shore whenever you touch it.
Joseph Forer: The decisions of this Court said that any coming into the United States from a foreign court is an entry and under the decisions of this Court, a first coming is an entry, a return is an entry. A third coming is an entry. (Voice Overlap) --
Felix Frankfurter: That's what I mean by (Voice Overlap) is that right?
Joseph Forer: (Voice Overlap) --
Felix Frankfurter: Anytime you -- anytime you touch the shore, is that right?
Joseph Forer: That is correct. Is an entry.
Felix Frankfurter: Yes.
Joseph Forer: But, none of the decisions said that in construing a statute expelling for conduct after entry, none of the decisions concerned themselves whether the words, "after entry" referred to after the first entry or to the last entry. They all assumed that meant after the last entry. Now, we're not -- the question here --
Felix Frankfurter: In what --
Joseph Forer: -- isn't the meaning of the word, "entry". The question here is the meaning of the word, "after entry". This man made reentries by any definition, by the statutory definition and by the case definition. But the statute says "Refers the membership after entry and that therefore, the question is, which entry does it refer to and the only point I'm trying to make is that the court below oversimplified the matter by thinking that it could discover the meaning of the phrase, "after entry", merely by discovering the meaning of the word, "entry". That's not the question here. The question is the meaning of, after entry.
Felix Frankfurter: What -- would you mind telling me what the -- why your discussion that coming means -- has a qualitative content in the statute when it didn't have on this -- I misunderstand you, a qualitative content renewed by this Court.
Joseph Forer: No it did have a you -- Your Honor, you did misunderstand what I said.
Felix Frankfurter: (Voice Overlap) --
Joseph Forer: It did have -- I said it had a qualitative content in both cases. It was the definition of entry by this Court was never intended to distinguish which of several entries was the critical entry, that's what I thought.
Felix Frankfurter: Are you saying that to be sure entry means anytime you come in?
Joseph Forer: That's right.
Felix Frankfurter: Including one after the Act. But that doesn't tell us what the consequence of the entry is. (Voice Overlap) --
Joseph Forer: That is correct and it doesn't tell us which entry is referred to when the statute says after entry. That seems to me that the plain logic and the only reason --
Felix Frankfurter: I notice that that. (Inaudible) if you tell me that entry has always been -- entry has been construed by this Court as meaning anytime you come in first, second, third or fourth, no matter how long you've been here and left and then come back. How can you then say that entry doesn't mean when you come in again?
Joseph Forer: Because I didn't say, entry doesn't mean when you come in again. I said, after entry.
Felix Frankfurter: I see.
Joseph Forer: The word, "entry" means any coming in. I don't care whether it's first, second or tenth, but the question here which is the question that the court below missed is that the question is the meaning of the phrase, "after entry" and not the meaning of the word entry.
Felix Frankfurter: Where is the phrase that we have construe, after entry?
Joseph Forer: Well, if you look on page 2 --
Felix Frankfurter: Of your brief?
Joseph Forer: -- of my brief. As at the -- page 2, the -- the very last section, Section 4 (a), "Any alien who was at the time of entering the United States or has been at anytime thereafter." And the question is, thereafter, meaning thereafter entering and the question is whether after entering, refers to -- includes his first entry or whether it's limited as I say to his last entry.
Felix Frankfurter: Well, then -- then we can -- can we and I clear my own mind by assuming that entry means physical entrance.
Joseph Forer: Yes, sir.
Felix Frankfurter: No matter when, we are coming -- coming means the same thing.
Joseph Forer: That is correct.
Felix Frankfurter: So that -- that qualitative content has anything to do with the content to get to entry of coming, but may have something to do what happens after you come in.
Joseph Forer: Well, I -- I wouldn't put it that way. I still say the question is what does after entering mean and not what does entering mean. The Court took the definition of entering and that doesn't solve the problem of what is meant by after entering, when you have entered several times.
Felix Frankfurter: But -- but -- you -- you -- I suggest on your own argument, must throw out that coming has a qualitative content.
Joseph Forer: Well, I -- I --
Felix Frankfurter: Well, I'm trying to follow your argument, if you'll abandon it, that's all what (Voice Overlap) --
Joseph Forer: I'm not abandoning in my argument -- Your Honor, I think, we're just using (Voice Overlap) --
Felix Frankfurter: Don't tell me to (Voice Overlap) --
Joseph Forer: (Voice Overlap) but using different --
Felix Frankfurter: (Voice Overlap) --
Joseph Forer: What?
Felix Frankfurter: Don't tell me some (Voice Overlap) --
Joseph Forer: I -- I didn't mean to say that.
Felix Frankfurter: Yes.
Joseph Forer: Now, I -- I want to get on to the affirmative reasons why we think that after entering in the statute, refers to following the last entry and only the last entry. First of all, this is in accordance with the general scheme of deportation legislation. It is a general feature of the immigration statute that -- and this particularly true of the deportation statutes referring to the expulsion of political radicals. It's a general scheme of these statutes that once an immigrant has satisfied the admission requirements, he is not thereafter expelled for pre-entry conduct or pre-entry characteristics. As a general rule, when new causes for expulsion were enacted specially for radicals, they were given retroactive effect only to the time of entry or the period after entry. This represents the policy not to upset a governmental determination of the alien suitability on the count of pre-entry conduct, which did not disqualify them under the law existing at the time of entering. It recognizes that once the Government has adjudicated the alien's suitability, it would be a breach of good faith if after the alien has rooted himself in this country. The determination of suitability is changed because of conduct which preceded the determination. But it is also established that the governmental determination of suitability is made with each entry made by an alien. A resident alien who leaves the country even for only a day is under the theory of the immigration laws, a newcomer on his return, so these two principles therefore, operate together. First, a governmental determination of suitability protects the alien against expulsion for pre-entry conduct. Second on each entry, there is made a governmental determination of suitability as if the alien were a newcomer. It follows that the latest governmental determination of suitability that is the last entry provides -- protects the alien against expulsion for conduct which preceded that, namely the last entry. Now normally, these principles operate to the disadvantage of the alien. For example, the alien maybe expelled for committing a crime involving moral turpitude within five years after entry. Under the principle that a returning alien is a newcomer, this five year probationary period starts afresh everytime the alien steps across the boarder and back. But there is no reason for applying the theory that the reentering alien is a newcomer whenever it makes the alien verso and discarding it in the more unusual case like here in which it makes him better off. This principle that it is the latest entry which is critical is -- manifested in the text of Section 241 (a) which is the deportation section of the Immigration and Nationality Act. Subdivision 6 to that section provides for expelling persons who are members of the Communist Party after entry. But subdivision 1 of that section expels aliens who were excludable at the time of their entry, including persons who are excludable at the time of entry if they entered without a valid immigration visa. And subdivision 2 expels aliens who entered without inspection. Now, it is impossible to contend and I am sure that the Immigration Service would not contend that an alien who is lawfully admitted on a proper visa and after inspection is expellable because on some earlier occasion, he had stole it into the country and then left on his own volition. If that were the case, a privilege of voluntary departure which maybe extended to illegal entrance who have been ordered deported, in order to allow them to reenter lawfully, would be of no or little of value. So it's clear and I don't think that the immigration service could contest it that subsection (1) of the deportation section, when it says that "Aliens shall be expelled if they were excludable at the time of entry," means excludable at the time of last entry. And subsection (2), when it says that "An alien is expellable if he entered without inspection," means he is expellable if he last entered without inspection. It should follow that subsection (6) when it says, "An entry is expellable -- an alien is expellable for Communist Party membership after entry," means after last entry. Moreover, there is one subsection, subsection (13) of this deportation section in which Congress, for reasons of its own, chose to depart from the statutory scheme that is the last entry which counts. And here Congress expressly used the words, "any entry". So under one occasion in which Congress meant any of several entries to count and to be critical rather than just the last entry, it was able to and did expressly say any entry.
Tom C. Clark: Outside of that, is there anything that you have in the history of the Act?
Joseph Forer: There is nothing that either side --
Tom C. Clark: (Voice Overlap) --
Joseph Forer: It seems to me, can cite in the history of the Act, of any real relevance. Now, at the very least, the statute is ambiguous and it is an accepted principle of construction often announced by this Court that deportation laws, because of their harshness, should be construed in favor of the alien. Also, we believe that this construction avoids a serious question as to whether the statute is being unconstitutionally applied. It was only with great misgivings that this Court sustained the validity of the statute expelling aliens for past Communist Party membership. This case contains all the dubious features of the typical case under the statute and then adds others of its own. Here, as in the preceding cases, an alien is being banished under a statute enacted years after the cause. And what was this cause? The peaceable exercise of constitutional rights of association and political advocacy, in these cases and the others, it is hard to see. I think it is impossible to see any rational connection between the legislation and any of the powers delegated to Congress. But here we also have something more. We have here a breach of governmental good faith because that's what it is to expel an alien for a cause which she divulged on seeking entry and which was held not to exclude him. This man came to our shores 20 years ago, crippled by having fought and risked his life in an antifascist war. He disclosed to the Government his former connection of the Communist Party, a connection which arose from his idealism and doesn't fit some stereotyped conspiracy. The Government decided that he was fit to reside in this country. That decision shaped his life. He took an American spouse. He worked here, thereby, contributing to our society. He fixed his roots here. He permanently estranged himself from the country of his origin.
Speaker: Was there -- was there any application for discretionary relief in this case?
Joseph Forer: He has made an application for discretionary --
Speaker: Hasn't been acted on?
Joseph Forer: It -- the -- a Board of Immigration Appeals rejected it because the record was in the court.
Tom C. Clark: Because what?
Speaker: The record was in the court, would you --
Joseph Forer: He --
Speaker: -- mean, they didn't have it before them physically?
Joseph Forer: That's what they said.
Tom C. Clark: Is it necessary upon the (Inaudible) to your position to maintain that it is only the last entry that is of significance?
Speaker: Well, no. You could say, either the last entry or the last entry under -- or the last entry of which he was admitted for permanent residence. In other words, if he chose his second entry here as the critical entry, that deems the entry on which he was admitted as a quota immigrant, the -- his reentries -- last entry was merely returning and didn't get the -- wasn't charged to a new quota. But I think that that's what the statute means. I personally think that it means last entry and I think that that's all that Section 241 of the Immigration and Nationality Act can mean.
Charles E. Whittaker: Be given -- excuse me.
Speaker: Excuse me.
Charles E. Whittaker: If it be given that construction, then might not one get rid of the effect of the law by simply stepping across then to Canada --
Joseph Forer: No.
Charles E. Whittaker: -- for a day and coming back?
Joseph Forer: No. No, that's impossible.
Charles E. Whittaker: Would that be your last entry?
Joseph Forer: That would be the last entry, but it wouldn't get rid of a cause for expulsion.
Charles E. Whittaker: If his -- if he gave up his membership in the offensive organization before he came back --
Joseph Forer: Now, let me -- let me answer, that question, Justice Whittaker.
Charles E. Whittaker: Yes.
Joseph Forer: Under the immigration laws, if an alien is under some expellable cause, which could -- and that expellable cause could be past Communist Party membership as well as present membership.
Charles E. Whittaker: Yes.
Joseph Forer: If he is under some expellable cause under the law then existing, he cannot get rid of it by stepping across the boarder, because once he steps across the boarders, that same cause which made him expellable, prevents him from returning. It makes him excludable and if he comes back anyway, as -- because of negligent inspection or lack of inspection or because he doesn't make a full disclosure, if he comes back anyway, he is then deportable because he entered at the time of his last entry in violation of the exclusion laws. So that you cannot, by stepping across the border --
Speaker: That wouldn't have been true at that time, now.
Joseph Forer: Well, at that -- at that time, when he stepped across the border, the cause for expulsion did not exist.
Speaker: Exactly.
Joseph Forer: What I'm saying is that you cannot get rid of a presently existing cause for expulsion by stepping across the border, which is the hypothetical situation.
Speaker: What -- what you're really arguing here is the converse of what was argued unsuccessfully in Volpe. That's what coming down to --
Joseph Forer: No -- No, Your Honor, in Volpe --
Speaker: Volpe, they contented the --
Joseph Forer: No.
Speaker: The alien contended that entry meant original entry, because the statute there -- the ground for deportation there was a prior act.
Joseph Forer: Yes.
Speaker: Here, you're arguing that -- that entry means last entry, because you're dealing with an after act.
Joseph Forer: No. I -- I'm not arguing that entries.
Speaker: What's the difference?
Joseph Forer: No. In Volpe, the Court said that both entries -- his first entry and the second entry was an entry and they said that a crime committed within five years before the last entry satisfies the statute. So the actual holding read the statute as if it read last entry, although they said that the prior entry was also an entry. I truly admit that all three entries made here by Bonetti were entries, but that doesn't solve the problem of which entry Congress was referring to when they used the words, "Having been a membership in the Communist Party, after entering the United States."
Tom C. Clark: Wouldn't that mean (Inaudible)
Joseph Forer: It -- it doesn't say after any entry. There's no more reason to read the word "any in", than to read the word, "last in". And as I tried to show -- if you look at the current deportation section, you can't make any sense at all or can't reconcile yourself the practice with regard to aliens who came in without inspection or illegal entrance. If you mean that an -- an alien can never come back with a visa without being expellable for a prior entry. And -- it had -- it simply is ambiguous and therefore the rule of lenity of construction is involved. Thank you.
Earl Warren: Mr. Fisher.
Roger D. Fisher: Chief Justice, may it please the Court. Before plunging in to the detailed arguments as to how the statute should be construed, I'd like to try and put the petitioner's position in the broad perspective of -- cancel legislation which Congress has adopted.
Felix Frankfurter: Before you do that would you mind stating in a sentence what and make a comment on Mr. Forer's remarks that the dispensations provisions couldn't be invoked or the physical record wasn't in somebody's hands?
Roger D. Fisher: The --
Felix Frankfurter: I just like to know.
Roger D. Fisher: The request for suspension for deportation was denied without prejudice to reapply later, if all the physical documents were not in the hands of the Immigration Service when he applied and --
Felix Frankfurter: Are these precious, you need documents for which there are no copies?
Roger D. Fisher: Their --
Felix Frankfurter: (Voice Overlap) I don't understand that --
Roger D. Fisher: The immigration -- my -- my experience with immigration service would indicate they are. That there will be an elaborate file giving all the information's thereby --
Felix Frankfurter: I they here are now, are these documents all here?
Roger D. Fisher: No, they are not here.
Felix Frankfurter: And then where are they?
Roger D. Fisher: I believe their -- if I withdrawn from the court below, the admitted party doesn't name him as part of the record up here.
Felix Frankfurter: Then where are they physically?
Roger D. Fisher: I do not know, Your Honor, I'll find out.
Felix Frankfurter: And the immigration authorities couldn't get hold?
Roger D. Fisher: At the time, he asked for suspension of deportation, the documents had been turned over, I understand, to the court at its request, and it was denied without prejudice to his (Inaudible) against for suspension of deportation.
Felix Frankfurter: As I understand --
Roger D. Fisher: If --
Felix Frankfurter: -- but if -- if the suggestion isn't a joke. They don't want to pass on it until the court gets through that isn't (Voice Overlap) --
Roger D. Fisher: No. The -- not as far as I know. The physical absence of the material do not know when they're going to get it (Voice Overlap) --
Felix Frankfurter: It sounds awfully (Voice Overlap) --
Speaker: Suppose what they --
Roger D. Fisher: I'll -- I'll look to it and find out if the Court would like on --
Speaker: I suppose that they -- reason they don't pass on is because they want a decision on the question of law. It seems to me extraordinary and they don't act on the thing that might run to this whole thing (Inaudible) This is a very tough case.
Felix Frankfurter: But you -- you negative that, don't you?
Roger D. Fisher: It's my understanding that it was not denied for that reason but it's on a -- on a comment -- telephone comment (Inaudible) on service. I do not -- I cannot help -- look into what the Court would like.
Felix Frankfurter: What I mean if tomorrow they grant that, this case is moot isn't it?
Roger D. Fisher: If he would -- yes. I'm not sure there wouldn't be other problems in the statute to attempt -- it cannot, but I think the case would be. I -- I wouldn't -- I'd make a commitment on that, but I'm not sure whether it might effect the status in some other way.
Felix Frankfurter: I should like for myself to say (Inaudible)
Roger D. Fisher: The statute is harsh and it's for the Government and the Court to conclude the statute. The -- there are four statutes involved here. There is the 1918 Act, which Congress first made deportable aliens who had after entry become members of organizations advocating the violent overthrow of this Government. At the basic act those persons who had after entry become members of such organizations. In 1940, the statute was amended to make it apply to persons who have become but no longer were members of subversive organizations. In 1950, the Communist Party of the United States was named in the statute as a party of which former membership were the grounds for deportation. And then in 1952, the Immigration Nationality Act would (Inaudible) definitions were adopted. This proceeding is governed by the 1950 statute of legislation, in effect, at that time. The basic operative language as to going back and getting ex-members, however, was that putting the Act in 1940. Petitioner's position in substance says that in 1940, when Congress was reaching back to make deportable ex-members of subversive organizations, organizations advocating to overthrow by force and violence, that at that time, all ex-members who had since leaving the party, decided continuously in this country, were to be deported. All ex-members who at some time seem since (Inaudible) party had taken a trip and left the country and come back, were not to be deported. We can -- you can take the ex-members of subversive organizations and put them in the two classes. Those who since -- leaving the party, one of these organizations but not the Communist Party by name at that time as organizations advocating violent overthrow, take ex-members who had left the organization and resided continuously here, petitioner concedes all those persons must be deported under the legislation. Aliens who had left the party years before, but who at some point had taken the trip or had left the country for good and come back and again, this -- this category of aliens with an additional foreign connection, were to be not deported. Now, this is wholly inconsistent with every other provision of the Immigration and Naturalization laws in which in every case, the person who continues -- continuously resides in the United States and aliens who continuously reside here is preferred over the alien who has left the country and returned, who has had traveled. Who was deported from the country and come back in.
Hugo L. Black: May I ask, you would -- if the immigration authorities violates the law and they forbidden him to come back the second time, knowing (Inaudible) that he has been a member of the Communist Party?
Roger D. Fisher: No, they did not. At the time in 1938 of his entry, the exclusion provisions only applied to current members of such organization. Of -- of organization which advocate the violent overthrow of the Government. So the issue with 1938 was did he then -- or was he then a member of an organization advocating the violent overthrow of the United States Government and there was no mistake made. He was properly admissible under the law -- existing in 1938.
Hugo L. Black: But they did have a (Inaudible)
Roger D. Fisher: On the question, I believe, of his then present membership and then present beliefs, which were relevant under the then statute.
Hugo L. Black: That was an introductory because he went through the same kind of examination that he would have and he never been in the country before?
Roger D. Fisher: Any alien returning to the United States, having left the United States, everytime he -- he is -- he loses every benefit he had before, except only his quota status. He does not have to wait on the quota anymore. In this case, he came in under a new quota, so he'd -- he abandoned that prior right.But whether that was forced on him or whether he just simplified on a new quota, because there was --
Hugo L. Black: He had no right to get here at that time acceptable of his being a (Voice Overlap) --
Roger D. Fisher: That's right he came in -- he came in oppressed at that time on this -- on the paper application he made. In construing the statute, the -- Mr. Forer suggested it's as easy to put in the word, "last entry" as it is the word, "any". I suggest there is no need to insert any word in the statute on its face, petitioner here is deportable. Section 4 (a) printed on page 2 of petitioners brief, "Any alien who was at that time of entering the United States or has been at anytime, thereafter." Mr. Forer and petitioner must agree --
Hugo L. Black: That doesn't -- that doesn't solve --
Roger D. Fisher: -- that he was --
Hugo L. Black: That doesn't solve, does it, at anytime, is that right?
Roger D. Fisher: No. That -- he entered the United States -- petitioner here, entered the United States in 1923. There is no doubt that he entered the United States in 1923 and it is not disputed the he entered the United States in 1923. It is not disputed that he was a member of the Communist Party of the United States, thereafter.
Hugo L. Black: But that -- that doesn't answer the problem we have (Inaudible)
Roger D. Fisher: I believe it does.
Hugo L. Black: (Inaudible)
Roger D. Fisher: I -- there is no reference any of which in the statute, this -- he, in asking the question, he has assumed his answers. In asking, the question is which entry he has assumed the statute refers to a particular --
Hugo L. Black: Although you're not assuming that yourself in your argument, now.
Roger D. Fisher: No, I'm saying it assumes any entry. I'm saying if I can't find that he entered the United States, I find an entry in the United States, a find that thereafter, he was a member of the Communist Party. He is by -- he was an alien in the -- in the United States --
Hugo L. Black: Therefore -- you therefore know that it's the entry -- entry in the first instance.
Roger D. Fisher: No.
Hugo L. Black: Just by reading.
Roger D. Fisher: Therefore, entry meant entry. And that he -- any alien who, at that time of entering the United States. Mr. Forer (Inaudible) entered the United States in 1923. There's no doubt about it. The district came in on 1923. He came in at 1938 and 1939, but he also came in 1923. A person is deportable, who after entry, has been at anytime a member of the Communist Party.
William J. Brennan, Jr.: Would that mean, Mr. Fisher, that you're reading the word (Inaudible) as the word, "any"?
Roger D. Fisher: The time of entering -- entering as (Voice Overlap) --
William J. Brennan, Jr.: In other words --
Roger D. Fisher: -- several times.
William J. Brennan, Jr.: -- you're reading, at the time of entering as, at any time (Inaudible)
Roger D. Fisher: No. At -- at the time of an act known as entering, at which this might be any, but the -- the -- it's the time of entering or the time of an entry, or after entry be -- but I'd -- I think that the statute on its face read literally as against the petitioner. The -- I'd like --
William J. Brennan, Jr.: I've heard you say it but, what?
Roger D. Fisher: He is an alien in the United States who after entering the Untied States became the member of the Communist Party. That -- but I -- I the -- the issue is far more -- I think the issue must to be resolved in terms of what Congress intended in the other legislative materials bearing on it, which petitioner says are not illuminating and which he totally ignores. The -- I might also point out the time of his -- the problem of Mr. Justice Whittaker mentioned, the time -- the 1950 legislation, there were two other grounds for deportation under the 1940 Act then in effect, which had multiple acts." An alien who at anytime after entry, shall have on more that one occasion, knowingly aided and assisted another alien from entering the United States, on more than one occasion." Now, reading the statute as petitioner would have us read it, that alien once he's got one these occasions to his discredit, he can go into Canada and come back in. A single such incident is not a grounds for exclusion. He wipes that one off, comes back in and he can then go on, if he gets the other one. Then he can go -- go outside the border and come back in, because this single one after entry is not a ground for deportation or not a ground for exclusion. The same is true when -- of the then legislation and the present legislation as any alien who shall have been convicted more than once of violating the provisions of Title 1 of the Alien Registration Act. Here again, are two convictions under the meaning given to the after entry by petitioner, after last entry. Once an alien has one such conviction, he can take a trip and come back in. I might say a single such conviction is not a ground for exclusion under the legislation. That --
Earl Warren: Suppose -- suppose the petitioner had not returned to this country until after the 1952 Act was in effect and he had his administrative hearings and was admitted as he was -- as he was here, would you say that after admitting him, after 1952, that the Government could turn right around and -- and deport him, before he has made -- where he has made the full and fair disclosure of -- of his past (Voice Overlap) --
Roger D. Fisher: I -- I think the Government would be required to. It would've been illegal for him --
Earl Warren: Is that right?
Roger D. Fisher: It would've been illegal for him to enter the United States under the 1952 law as a former member of the Communist Party. And under the legislation as drafted, an alien who enters and who is excludable at the time of his entry as such, then would -- he must be deported thereafter found to be, so that if he had made the same statements here, it would been an error to admit. We do not have the case of whether, the administrative decisions, making a mistake, combined the Government thereafter from deporting. We have the case here, I might say there are two alien, both of them were ex-members. One of whom always stayed in this country. There was no question raised about his right to resign here. The law unquestionably requires a deportation as an ex-member. Another alien who -- an ex-member went to Spain, came back. No, there's no impropriety in going. No impropriety in coming back. Once he's here, he is -- certainly, we submit, no better off for having been legally admitted the second time, than the alien who continuously resided in this country. Now, whether Congress intended aliens who took a trip, went abroad and reformed to -- intended to give them a different treatment I think is clear right from the beginning. In the 1918 Act to which the provisions are printed in the supplemental memorandum made available for the Court, given the text to some of this law, that's on page 3. The two line -- two sentences were put in there, the bottom sentence on the page 3 indicating the provisions on this section shall be applicable to the class of aliens mentioned in this act, irrespective to the time of their entry in the United States, has been carried forward continuously showing it is meant to apply to entries and long time back. But the Section 3 of the 1918 Act appearing on page 4 of our supplemental memorandum, "Suppose that any alien who having been deported so thereafter returned, shall deemed guilty of a felony and deported again." And there was some debate on that. Mr. (Inaudible) thought this was pretty rough. This was very severe. He spoke of the alien who had some really and sincerely reformed having left the country and wanted to come back. They asked at the end of his speech, is there anything that permit him to come back and of the country under existing law under this proposed law. Mr. Burnett I think not and I do not think we should adopt anything that would, because it would open the door to too many cases of pretended reaffirmation. Now, this was dealing with persons who were actually been deported, but it does indicate the total was that the fact person left the country and sincerely reformed and wanted to come in on a fresh start the proposal Mr. Burnett sponsored of the then bill, thinking in behalf of it, opposed the suggestion that he be allowed any reaffirmation. Now, turning to -- and between 1918 and 1940, there are three cases decided by this Court, which I think are particularly significant, I'll discuss here in -- in connection with the -- the history of this legislation. First of these, in 1929 is, Claussen against Day, which is -- where the question a -- an alien entered in 1912 and reentered in 1918 and in three years later was convicted in manslaughter and the problem was whether this is a conviction in fives years, after entry. This Court held that it was and there was not -- the issue there and the issue in the Volpe case was not, I submit, a one of equality. What kind of an entry in the sense of was it a visit or was it arrival. The -- the Court projected the argument that the word, "entries" should be modified or limited in any way and said one petitioner landed at Boston and is returned from South America. He made an entry within the meaning of the Act and the Court construed after entry as meaning after an entry and the second entry there accounted. But the theory was not that it was after the last entry. The theory was that it -- what he did prior to this deportable conduct was an entry, that's coming in. Now, in the Volpe case, it was a -- it was a matter of a conviction of the crime involving moral turpitude prior to entry. Volpe came to the United States, was here convicted of counterfeiting, left the United States and came back in. This Court held that his -- his conviction of counterfeiting in this country was a -- a conviction of a crime of moral turpitude prior to entry -- prior to an entry. We -- in the Court's opinion there, quoted in page 12 of our brief, "We accept that view that word, "entry" includes any coming of an alien from a foreign country into the United States, whether such coming be the first or any subsequent one." Now, the -- the petitioner in his brief, in his footnotes, suggest that Volpe was not really arguing. He was questioning whether the second coming was in fact, an entry. Petitioner's brief in the Volpe case which I respectfully refer to the Court, does not make any such argument. He speaks of this two comings as two entries, as they reentry and argue the question here that the word, "entry" should defined in one way so that pre-entry conduct should be pre first entry conduct rather than just any pre any entry, pre any entry conduct. Now the -- in the third case, 1939 was Kessler against Strecker which this Court interpreted in the 1918 statute, as requiring the deportation only of those members of subversive organizations who were still members at the time the -- the warrant of deportation was served upon them. They -- they found the statute had no -- the 1918 Act was not intended to reach persons who had left the party. In 1940, right after that statute -- if I have that case was decided by this Court. Congress amended and adopted the language -- the retrospective language we're here concerned with today. In the 1940 Act, Congress repeatedly used the phrase, "entering in the concept of after entry", as they had before. Now, that phrase it since then been defined clearly as meaning the first or any subsequent entry for purposes of grounds of deportation. There was no attempt to modify, limit or change that broad definition. However, in the Kessler and Strecker problem of former members, the Court -- the Congress did enact legislation to change the law as to that situation. The purpose of the change was to deport former members of subversive organizations. Now, the -- in supporting former members, the Senate report quoted on page 17 of the Government's brief, summarizing that proposed amendment and to also provide that any alien, I'm reading from the bottom, two lines of that page -- page 17, "Any alien who has been a member of such classes at any time after the admission to the United States for no matter how short a time or how far in the past, so long as there was act of (Inaudible) entry, shall be deported. That we -- we regarded it's inconsistent for them to read providing he had not taken the trip abroad in the meantime, as being a reasonable legislative construction of the -- of the intent at that time. That -- that if you read the way petitioner says that anytime after his admission, for no matter how short of time or how far in the past, so as long as after the date of his first entry and so long as he has not taken a trip abroad or left the United States, at any point since then.
Hugo L. Black: Did it say so long as -- as to the first (Inaudible)
Roger D. Fisher: No. I'm saying he would -- reading it -- I would be reading the report if the statute meant this amendment, as petitioner would have agreed. These -- all persons who after the first entry, shall be -- who have been a member anytime shall be deported, unless they have taken a trip since then. And I submit that -- in saying, "Oh, were just putting after last entry in there, you are changing congressional -- a policy of no -- no recovery for any ex-members of the subversive organizations. They were not to be able to -- to reform and live in this country -- I could to the rest to the debate and other comments on the 1940 Act make this even more clear.
Hugo L. Black: Don't you think there's a difference, however, I -- I don't know, but I wanted to (Inaudible) as a man who comes here, goes back, gives up any idea of being considered on living based on you, then applies on the new (Inaudible) and goes through new proceedings and he's admitted, how can you say there's no reason that perfectly the acts of this Congress has meaning, that it's that entry that counts. Because what they wanted to see, that no man (Inaudible) becomes a member of this Communist Party.
Roger D. Fisher: The -- Mr. Justice Black, I submit that what Congress was concerned with in using the phrase, "after entry" and "prior to entry" was not his last arrival in this country. They were concerned with people who are members of such organizations in this country as contrasting with those who are members elsewhere, who left.
Hugo L. Black: That would assume --
Roger D. Fisher: That --
Hugo L. Black: That would assume was it not, that they wanted despite of the fact that people went over (Inaudible) maybe 10 years, maybe had been only a day, or week. It come back in 10 years, went through all the process and all the efforts and yet they meant that they could be put out even though they -- when they came in told everything about it. They came back on the Congress (Inaudible) they were here.
Roger D. Fisher: You -- in making that suggestion, Your Honor, you put the alien -- this -- this trip was 16 months. He --
Hugo L. Black: Well, I don't know what --
Roger D. Fisher: He went from here to Spain and is back 16 months later. The -- and when he left there was -- although in fact he came in under a new quota, there is nothing he did at that time he left to determine that -- that facts of -- he might have been applied for returning as returning resident alien. He did not. He applied under a new quota.
Hugo L. Black: Why was that? I wonder.
Roger D. Fisher: I do not know, I couldn't find out. I tried to find out why he done it that way and why this is happening, I'm unable to find out. Now, there are two argument -- two reasons why I cannot accept your suggestion. One is that the statute in the entire law used entry as meaning any coming and it's very hard to distinguish between the alien who -- who -- or they might come from a country such as alien with a quota has long backlog and who could not afford to leave the country and come in on a new quota with that long wait. And the alien from a country which has no backlog on the quota list and could leave voluntarily and come in new quota, easily, they could come back in on a -- on this old one. I -- I think the distinction that any such decision this Court would made would be making paper formalities of which type of paper came back in on that they get a reentry permit after his 16 months, or did he come in on new visa for 16 months? As determinative when there's no indication that it should be and there is nothing in the statutory language or the regulations to slam any support to such a distinction. The petitioner --
Hugo L. Black: Even if I don't understand that you say it's (Inaudible) suppose a man has come in (Inaudible) three days and went back, lived that 10 years and then he went through all the process in the American consulate and all that. Finally, they gave him that is -- he's saying he came back told -- wrote the consul and people over here, came in and said where he had been, that -- that's more than a paper, isn't it?
Roger D. Fisher: It -- I don't know whether it take more time to fill out these forms or wait. It would depend on what country it was coming from. But what I'd like to call your attention to, Your Honor. This statute here excluded henceforth all such persons from entering thereafter. So there was not to be any forgiveness anybody coming in. And the question we're -- we're examining is, did they mean as to that group who theretofore prior to the 1940 or 1950 amendment, theretofore had been members and no longer work. It's only retrospective in this that's the only issue we're concerned with. There's no more -- no one else can now save himself by going out and coming in from this particular clause, because they're excludable. So, when Congress was dealing backwards with ex-members, do they mean to say all those who continuously resided in this country who had no additional foreign connection whatever, must be deported? Whereas all those who had a foreign connection, whether it's one day or in the case you suggest, a longer period of time, a substantial foreign connection since being a member of the party, they can be allowed to remain.
Hugo L. Black: But there was (Inaudible) one perspective was only those who did that after entering, this act applies?
Roger D. Fisher: If I can try and see why --
Hugo L. Black: Depends on which -- depends on which (Inaudible)
Roger D. Fisher: The statute says after entering the United States. Petitioner entered the United States in 1923. Now, as to whether -- and he was a member after entering the United States, which is undisputed. Now, in -- in the 1940 Act, it was proposed that aliens who have been members, this is the time they went back -- that have been members who had reformed, who had come in and proved that they left in good faith that for five years, they had not been members of the party -- five years not been members of the subversive organization, that they should be allowed to stay. This -- this was a -- proposed by Mr. (Inaudible) and he talked about the hardship. That persons who are long time back, would want to start fresh. He suggests that -- this was not too liberal to say that if they could prove, they left five years before in good faith, the Mr. Hobbs, who was managing the bill in the House said -- we've quoted at length in our -- our brief on his speech. "We want those who have never sent, those aliens who have never been a member of such organization." And he -- and the proposal was defeated on the grounds they wanted no procedure whereby an ex-member will be preferred to this country and allowed to stay over aliens who were clamoring for admission, who had never been members.
Hugo L. Black: Do I understand (Inaudible) this Act, they -- as they came out. Suppose he has been a member of the Communist Party during the same year before he came in the second time (Inaudible) has been a member of the Communist Party in Europe, constant loyal (Inaudible) he came in and they let him would he then be covered by this act, if he did not become a member of the -- or was not a member of the Communist Party thereafter, in this country?
Roger D. Fisher: Not by this provision. Not --
Hugo L. Black: So, under any provision, does the law now, as it (Inaudible) I am not familiar with the reason (Inaudible) does it authorize the deportation of aliens who came here and were not members of the Communist Party at that time. He didn't become so actually, but had been members of the Communist Party in Europe.
Roger D. Fisher: If he was a member of the Communist Party in Europe, he would not be deportable except however, this may shed light on your problem. If he had previously entered the United States and then joined, it specifically provides --
Hugo L. Black: I -- I'm (Voice Overlap) --
Roger D. Fisher: -- foreign communist organizations indicating that they visualize persons might be deportable who had been members of foreign communist organizations. Now, the Act -- the Act as we -- as the legislative history makes clear I think was directed at those persons who in this country as Mr. (Inaudible) in his final statement said, "We want to preserve America for those who have never send by espousing the cause of assassination of our officials or Government." And they've distinguished between those who have been members of other organizations abroad but those who have sinned, what he calls sinned, but those are the members of organizations seeking to overthrow this country and we believe that is the -- the critical distinction between prior entry and after entry. I'd also would like to refer the Court to the -- to the other material in the brief particularly the other language in the suspension of deportations provisions in which Congress in the 1952 Act referred to last entered -- last entered, where they meant use that language
Felix Frankfurter: I -- may I ask you, are you sure what you actually gave him at the outset of your argument that the department of the Immigration and Naturalization Bureau does not deem itself included and (Inaudible) for relieving action because it (Inaudible) that was defending in the Court. Is that -- that's what you said, didn't you?
Roger D. Fisher: Yes, I -- I did, Your Honor. I'd like to call your attention to the last footnote on page 23 of our brief which states that the -- this action does not preclude petitioner from seeking discretionary relief from suspension deportation under Section 240.
Felix Frankfurter: Right now, today, this afternoon.
Roger D. Fisher: There is no -- there is -- as far as I know, there is no legislations which would or any fact which would preclude petitioner now from applying for suspension of deportation.
Felix Frankfurter: All -- all the department from -- in view of fact that such application had been made to the passing on it.
Roger D. Fisher: I've looked into that.
Felix Frankfurter: We have any rule or procedure that testify (Inaudible)
Roger D. Fisher: I do not. I don't -- I'm sorry, Mr. Justice Clark, I --
Tom C. Clark: You didn't find (Inaudible)
Roger D. Fisher: I believe it is previous -- I don't know. I don't believe he's barred. I do not know, on -- on this -- this -- on the timing in this case.


Earl Warren: You may proceed, Mr. Furman.
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 --
Hugo L. Black: Think Mr. -- I think Mr. Rhyne said that no one of them directly raised this question.
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.
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.”
Greene Chandler Furman: I -- I think --
Hugo L. Black: All of that was a quote. I didn't know that. That's what I'm trying to find out.
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.
Earl Warren: Well, you did raise a state constitutional question too, didn't you?
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 --
Earl Warren: Yes. Well you -- both of them --
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 --
Charles E. Whittaker: That was the reason of counsel (Inaudible)
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 --
Charles E. Whittaker: (Inaudible)
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.
Hugo L. Black: Is this the brief that was filed with the court that wrote the opinion Mr. Justice Whittaker is referring to?
Greene Chandler Furman: The Court of Common Pleas, Your Honor.
Hugo L. Black: Court of Common Pleas.
Greene Chandler Furman: That is correct, Your Honor.
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?
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 --
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?
Greene Chandler Furman: That was before the trial court, Your Honor.
Hugo L. Black: Just before the trial court has wrote there?
Greene Chandler Furman: That is correct, Your Honor.
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.
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.
Charles E. Whittaker: (Inaudible)
Greene Chandler Furman: 309, Mr. Justice Whittaker, 551, page 551.
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?
Greene Chandler Furman: That is indicated Your Honor, because --
Felix Frankfurter: Well, that is not indicated. That's what we did there, isn't it?
Greene Chandler Furman: Because it was not expressed enough but nevertheless, it did not affirm for the reason urged by the --
Felix Frankfurter: No, no, no.
Greene Chandler Furman: -- the appellant.
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?
Greene Chandler Furman: That is correct, Your Honor. That's -- that's the language I have here.
Charles E. Whittaker: (Inaudible)
Greene Chandler Furman: That's correct, Your Honor. I don't think that's conclusive on this Court though.
Charles E. Whittaker: Well, it did decide it for an ambiguous (Inaudible)
Greene Chandler Furman: I --
Charles E. Whittaker: (Inaudible)
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 --
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.
Greene Chandler Furman: I -- I don't think so. That's the purpose of these cases I'm citing Your Honor that --
Charles E. Whittaker: Is the Court (Inaudible)
Greene Chandler Furman: I think it did, Your Honor, very definitely. Yes indeed. But --
Hugo L. Black: You mean the Fourteenth Amendment?
Greene Chandler Furman: Well, the -- the language used here which Mr. Justice Whittaker was reading, it says the Fourth Amendment.
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?
Greene Chandler Furman: That's the whole basis of the appellee's position as we honest --
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.
Greene Chandler Furman: I think as the trial judge said that --
Hugo L. Black: But suppose they couldn't keep this Court from deciding the constitutionality of -- of the question if it was raised properly --
Greene Chandler Furman: We assert --
Hugo L. Black: -- simply by leading it out the judgment.
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 --
Earl Warren: Would you -- would you give us that third case --
Greene Chandler Furman: Yes, Your Honor.
Earl Warren: -- before you sit down?
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.
William J. Brennan, Jr.: 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?
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 --
William J. Brennan, Jr.: Your association is largely in the larger municipalities of it?
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.
William J. Brennan, Jr.: Thank you.