it may be necessary to search private houses for the purpose of inspecting their sanitary condition, or to ascertain the existence of a nuisance detrimental to health, or to discover persons who are affected with a dangerous disease such as threatens an epidemic. Such inspections are usually conducted under the orders of the health officers, and are so seldom resisted that the question of their legality does not appear to have come before the courts. But if an entry into a private house could not be obtained, for such purposes, without the employment of force, it is probable that the case would justify the issue of a search warrant.240 Time of Execution of Warrant

At common law, a search warrant was always directed to be executed by day, and it was doubtful whether it could be lawfully executed in the nighttime, even if no time was limited in the direction.241 But search warrants issued in aid of the enforcement of the police or sanitary regulations of the state are not common law warrants, but rest entirely on statute. Consequently, it is not necessary to their validity that they should limit the service to the daytime.242

SEARCH WITHOUT WARRANT

222. Without a warrant, officers may search a person whom they place under arrest and also the place where the arrest is made. Also, without a warrant, but with probable cause to believe a crime is being committed, officers may search a ship, boat, automobile, or other vehicle. But except in such cases papers or property discovered and seized by officers in the course of a search without a warrant cannot be used in evidence against the person accused.

Although not armed with a warrant, police officers may search the person of one lawfully under arrest or seized while resisting a lawful

240 See Spring v. Inhabitants of Hyde Park, 137 Mass. 554, 50 Am. Rep. 334; Brown v. Murdock, 140 Mass. 314, 3 N. E. 208.

241 2 Hale, P. C. 150. In a statute forbidding the search of a dwelling house in the "nighttime," this term means the space of time during which the sun is below the horizon, except the space which precedes its rising and follows its setting during which, by its light, the countenance of a man may be discerned. Petit v. Colmery, 4 Pennewill (Del.) 266, 55 A. 344. This was the common-law definition of the "crepusculum" or twilight, as it was applied in the law of burglary.

242 Commonwealth v. Hinds, 145 Mass. 182, 13 N. E. 397; State v. Brennan's Liquors, 25 Conn. 278.

arrest or while engaged in the commission of a crime or endeavoring to escape, and they may also, contemporaneously, search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the 'means by which it was committed, as well as weapons and other things which might aid in an escape, and such articles may be used as evidence to prove the offense for which the arrest is made.243 But officers have no right to arrest and search a person, without a warrant, on mere suspicion that he is violating the law, as, for example, by carrying a concealed deadly weapon.244

An exception to the general rule is also made, from the necessity of the case, where the occasion for making an arrest and search arises suddenly and the article to be discovered could readily be removed out of the jurisdiction if time were taken to apply for and obtain a search warrant. This happens chiefly in rum running cases and the illegal transportation of liquor in motor cars. The Supreme Court has said the fourth amendment "has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure, in respect of which a proper official warrant readily may be obtained, and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 245 But it is also held that, to justify a search in such cases, the officer must have probable cause to believe that a crime is being committed.

Where officers of the law, in conducting a search illegally and without a warrant, discover and seize books, papers, or other property of the person accused of crime, such articles cannot be used in evidence against him on his trial, but must be restored to him on his demand, since otherwise the search and seizure are unreasonable, and moreover

243 AGNELLO v. UNITED STATES, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, Black Cas. Constitutional Law, 456; Chastang v State, 83 Ala. 29, 3 So. 304; Smith v. Jerome, 47 Misc. Rep. 22, 93 N. Y. S. 202; State v. Edwards, 51 W. Va. 220, 41 S. E. 429, 59 L. R. A. 465.

244 Pickett v. State, 99 Ga. 12, 25 S. E. 608, 59 Am. St. Rep. 226; Hughes v. State, 2 Ga. App. 29, 58 S. E. 390; Hughes v. Commonwealth, 19 Ky. Law Rep. 497, 41 S. W. 294. Compare Keady v. People, 32 Colo. 57, 74 P. 892. 66 L. R. A. 353.

245 Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 545, 39 A. L. R. 790.

he would be denied the privilege against self-crimination secured to him by the fifth amendment (so far as concerns proceedings in the federal courts), and by similar provisions in the constitutions of many or most of the states.246

RIGHT TO OBTAIN JUSTICE FREELY

223. In many of the states, the constitutions provide that every person ought to obtain justice freely, without being obliged

to purchase it, completely and without denial, promptly and without delay.

This provision is founded on the forty-seventh article of Magna Charta, wherein the king declares: "We will sell to no man, we will deny to no man, nor defer, right or justice." The guaranty of free, prompt, and effectual justice, although it is but seldom violated by the legislature or the courts, is one of the most important and valuable principles of freedom. Of course this constitutional provision does not mean that the laws shall be perfect, or their administration unerring. It means that the courts shall always be open to every suitor, be he high or low, rich or poor; that justice shall not be bought or sold, nor made a luxury available only to the wealthy; that for every infraction of the rights of the individual the law should provide a practical and adequate remedy; and that justice should not be deferred by vexatious and unnecessary delays, nor withheld during a longer time than is required for the regular and orderly course of judicial proceedings. It is not a guaranty of a remedy for every species of injury, but only such as result. from an invasion or infringement of a legal right or the failure to discharge a legal duty.247 It is violated by a statute which forbids the maintenance of an action against a trade union or an association of employers for a tortious act committed by or on behalf of such union or

246 AGNELLO v. UNITED STATES, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, Black Cas. Constitutional Law, 456; Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; People v. 738 Bottles of Intoxicating Liquor (Co. Ct.) 190 N. Y. S. 477. Contra, Banks v. State, 18 Ala. App. 376, 93 So. 293, 24 A. L. R. 1359; Martin v. State, 148 Ga. 406, 96 S. E. 882.

247 Goddard v. Lincoln, 69 Neb. 594, 96 N. W. 273.

BL.CONST.L. (4TH ED.)-36

association,248 and by one which denies to a corporation of another state the right to sue in the courts of the state without a license.249 But the constitutional guaranty does not apply to an action sounding in tort when brought against the state itself or one of its counties.250 A trial before a judge who is prejudiced or who has already decided the question at issue is contrary to this guaranty,251 and so is a trial before a committee of the legislature or an administrative body unless the accused is given full opportunity to answer and make defense.252 But what the constitutional guaranty is concerned with is providing an adequate and practical remedy for every legal injury, not any particular form of remedy. Hence it is not violated by the workmen's compensation acts though they contemplate a procedure altogether different from an action for damages at common law 253 On the other hand, this guaranty is violated by a law which imposes heavy penalties or fines or other disastrous effects on the attempt to resist, by appeal to the courts, the enforcement of a statute deemed unjust or invalid, the effect being to deter persons concerned from asserting their opposition to it in good faith and thus in effect denying them a remedy for their injuries.254 But this constitutional provision does not secure to litigants the right to take an appeal or writ of error from every decision of an inferior tribunal.255

As to obtaining justice "freely and without purchase," this is aimed not merely against bribery and corruption, but against the imposition of

248 In re Opinion of the Justices, 211 Mass. 618, 98 N. E. 337.

249 British-American Portland Cement Co. v. Citizens' Gas Co., 255 Mo. 1, 164 S. W. 468, Ann. Cas. 1915C, 151.

250 Gearin v. Marion County, 110 Or. 390, 223 P. 929.

251 In re Cameron, 126 Tenn. 614, 151 S. W. 64.

252 Greenfield v. Russel, 292 Ill. 392, 127 N. E. 102, 9 A. L. R. 1334. 253 Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412; Shea v. North Butte Min. Co., 55 Mont. 522, 179 P. 499.

254 Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263 U. S. 629, 44 S. Ct. 220, 68 L. Ed. 480; Florida East Coast Ry. Co. v. State, 79 Fla. 66, 83 So. 708; Atlantic Coast Line R. Co. v. Wilson & Toomer Fertilizer Co., 89 Fla. 224, 104 So. 595; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061.

255 Lake Erie & W. R. Co. v. Watkins, 157 Ind. 600, 62 N. E. 443; Kadderly v. Portland, 44 Or. 118, 74 P. 710; McClain v. Williams, 10 S. D. 332, 73 N. W. 72, 43 L. R. A. 287, 289; Fleshman v. McWhorter, 54 W. Va. 161, 46 S. E. 116; Mau v. Stoner, 14 Wyo. 183, 83 P. 218; In re Sutter-Butte By-Pass Assessment, 190 Cal. 532, 213 P. 974.

BL.CONST.L. (4TH ED.)

unreasonable charges for the use of the courts. 256 But it does not have the effect to prohibit the imposition of docket fees, reasonable in amount, or the taxation of fees and costs in legal proceedings.257 Nor does it debar the legislature from authorizing the courts to require suitors to furnish security for costs in proper cases.258 Nor is it violated by a statute requiring a person who seeks to have a tax sale of land set aside to deposit in court the amount of the purchase money with all taxes and costs accruing since the sale, at least where the objection is to irregularities or omissions in the tax proceedings.259

TRIAL BY JURY

224. The seventh amendment to the federal Constitution (which is applicable only to courts of the United States) and also provisions in the constitutions of many of the states secure to suitors a right of trial by jury in civil issues.

The seventh amendment to the federal Constitution provides that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." This amendment, although it provides in general terms that the right of trial by jury shall be preserved, was intended to apply, and does apply, only to proceedings in the courts of the United States, and it does not affect proceedings in the state courts, nor the power of the states to

256 Malin v. Lamoure County, 27 N. D. 140, 145 N. W. 582, 50 L. R. A. (N. S.) 997, Ann. Cas. 1916C, 207.

257 Perce v. Hallett, 13 R. I. 363; Walker v. Whitehead, 43 Ga. 538; Succession of Grover, 49 La. Ann. 1050, 22 So. 313; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Christianson v. Pioneer Furniture Co., 101 Wis. 343, 77 N. W. 174; In re Lee, 64 Okl. 310, 168 P. 53, L. R. A. 1918B, 144. But compare Davidson v. Jennings, 27 Colo. 187, 60 P. 354, 48 L. R. A. 340, 83 Am. St. Rep. 49.

258 Conley v. Woonsocket Inst., 11 R I. 147. But see Schade v. Luppert, 17 Pa. Co. Ct. R. 460; Lommen v. Minneapolis Gaslight Co., 65 Minn. 196, 68 N. W. 53, 33 L. R. A. 437, 60 Am. St. Rep. 450. And see Eckrich v. St. Louis Transit Co., 176 Mo. 621, 75 S. W. 755, 62 L. R. A. 911, 98 Am. St. Rep. 517.

259 Vance v. Town of Pleasanton (Tex. Civ. App.) 261 S. W. 457; Craig v. Flanagin, 21 Ark. 319; Pope v. Macon, 23 Ark. 644; Coonradt v. Myers, 31 Kan. 30, 2 P. 858.