author: By KOVACHY, J: Ey SKEEL, PJ.:

text:
    HUDSON, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24069.
    Decided May 8, 1957.

      Chester K. Gillespie, for plaintiff-appellant.
    Ralph S. Locher, Director of Law, Joseph H. Crowley, Chief Counsel, Carl J. Grosclaude, John H. Urbancik, Asst. Directors of Law, for defendant-appellee.
   OPINION

By KOVACHY, J:

This is an appeal on questions of law from a judgment entered on a verdict rendered in favor of the defendant by a jury in the Cleveland Municipal Court.

The plaintiff-appellant is the husband of a 75-year old woman who tripped and fell over a water valve cover while crossing East 46th Street from the northeast to the northwest corner on the northerly side of Central Avenue in Cleveland on April 22, 1955, at about 8:30 P. M, He brought his action for loss of service and society of his wife and for the expenses resulting from the injuries sustained in such accident.

The crosswalk at the intersection involved was under repair by the City of Cleveland at the time of the accident. A binder course had been laid in preparation for the final coat of asphalt. While the outline of this binder course appeared for all practical purposes to mark off the crosswalk, the northerly outline of it was about fifteen to eighteen inches north of the theoretical crosswalk established by ordinance where no markings exist. Actual measurements placed the metal cover two to four inches north of the theoretical crosswalk. The metal cover was ten inches square. The testimony varied as to its height, one witness testifying that its height was from one-half to three-quarters of an inch above the surface of the road; others testified it was three to four inches. The lighting was good.

Plaintiff-appellant sets forth six assignments of error, but in his brief and argument relied upon but two:

1. The court erred in submitting certain written charges to the jury before argument upon the request of the defendant; and

2. That the court erred in indicating to the jury the party requesting the special charges before argument.

We shall consider the latter claim first. It is clearly the law that a trial court should not inform the jury which party requested the written charges submitted to them. Written charges before arguments are principles of law applicable to the case being tried and should be regarded as emanating from the court. While the Supreme Court of Ohio has not directly passed upon the question, it did state in the case of Lima Used Car Co. v. Hemperly, 120 Oh St 400, 404, 166 N. E. 364, 366, that such instructions “are not to be regarded as the law of any particular party.” Courts of appeals of Ohio, however, have passed upon the question and it is obvious from these decisions that, while mentioning the party requesting a written charge submitted to a jury before argument by the court is not reversible error, if the charge itself embodies a correct statement of law, the practice is undesirable and improper. In the fourth paragraph of the syllabus in Harper v. McQuown, 30 Abs 389, it is stated:

“4. It is preferable that statements of the court intimating that either plaintiff or defendant made special requests for instructions be omitted, but unless the special requests incorrectly state the principle of law, there is no prejudicial error.”

and in paragraph 5 of the syllabus in Manchester v. Youngstown Sheet & Tube Co., 24 Abs 658, 18 O. Q. 503, we find the following:

“5. Special requests are not the law of counsel requesting them but are the law of the court, and should be so considered by the jury, so that it is improper for either the court or counsel for either party to indicate to the jury who prepared a particular charge.”

To the same effect, Haney v. Dayton Street Transit Co., 45 Abs 312, 67 N. E. (2d) 794.

We shall now consider plaintiff-appellant’s first claim of error.

Defendant’s written charge No. 1 was submitted to the jury before argument of counsel. It reads:

“1. The Court charges you as a matter of law that if you find from the evidence that the plaintiff’s wife was guilty of any negligence proximately contributing to cause the injuries complained of by the plaintiff, then your verdict must be for the defendant City of Cleveland.”

Plaintiff contends that the statement “if you find from the evidence” without mentioning the degree of proof required, namely: “by a preponderance of the evidence,” was erroneous. This claim of error we overrule. A requested instruction before argument need only state one principle of law applicable to the facts. The degree of proof itself is a proposition of law. The Supreme Court, in the syllabus of Hunter v. Brumby, 131 Oh St 443, 3 N. E. (2d) 353, stated the law as follows:

“1. It is not required that a requested written instruction to a jury before argument shall cover every branch and feature of the case.
“2. Such instruction is not erroneous simply because it employs the phrase ‘if you find’ but omits reference to the required degree of proof.”
Plaintiff also contends that charge No. 3 was prejudicially erroneous. It reads:
“3. The Court charges you as a matter of law that if you find that the difference in height between the top of the water shut-off valve box and the asphalt pavement was three-fourths (%’s) of an inch or less, you must find as a matter of law that the City of Cleveland did not violate §723.01 It. C., and you must bring back a vérdict for the defendant, City of Cleveland.”

This charge was undoubtedly based on the syllabus of the case of Kimball v. City of Cincinati, 160 Oh St 370, 116 N. E. (2d) 708, which reads:

“A variation of from one-half to three-fourths of an inch in the heights- of adjacent sections of a sidewalk is a slight defect commonly found in sidewalks, and the municipality in which such sidewalk is located is not guilty of a violation of the duties imposed upon it by §3714 GC, by reason of the existence of such defect.”

The majority of this court are of the opinion that the principle of law enunciated in that case has no application to the facts presented herein. It is common knowledge that sidewalks laid in sections undergo movements in the course of time which develop variations in height so that the joints do not meet. An edge of a section may sink below or rise above the edge of the adjacent section, creating an irregular joint, and it would be an impossible task for a municipality to restore the many imperfect joints to their original level. In the case before us, however, the trial court was concerned with a single water valve cover which protruded temporarily above the level of the pavement during repairs to the street. It was an isolated situation and was permitted to exist without any warning whatever to pedestrians crossing at that point. The City of Cleveland itself caused such condition to exist, and whether in so doing it created a qualified nuisance in violation of §723.01 R. C., was a question to be determined by the jury on the basis of the height, size and location of the object and all surrounding circumstances then and there prevailing. The instruction given the jury was consequently prejudicial to the rights of the plaintiff and constituted reversible error.

However, we unanimously hold that this instruction should have included the text of the statute therein referred to, namely: Sec. 723.01 R. C., to be a complete statement of law, and for such reason, also, was erroneous.

t Plaintiff also says that charge No. 4 was patently erroneous. It jfeads:

L “4. The Court charges you as a matter of law that City Ordinance No. 9.1904 was in full force and effect at the time complained of in plaintiff’s petition, and that said ordinance is as follows:
“ ‘Any person who crosses a roadway within a business district, as defined in Sec. 9.0102 of this subdivision other than at a cross-walk, -or steps from the curb into the roadway at a point other than upon a cross-walk, or crosses any roadway diagonally, shall be subject to immediate arrest, and in any hearing in the municipal court on the charge of violating Sec. 9.1903, testimony that the person did any of the acts above set forth, shall be prima facie evidence of violation of Sec. 9.1903.’

“and the Court further charges you as a matter of law that Ordinance No. 9.1903 was also in full force and effect at the time complained of in plaintiff’s petition, which ordinance is as follows:

“ ‘No person shall enter upon, walk in, or cross any roadway, in such a manner as to endanger his life or limb, or so as to cause injury to another person, or another person’s property, lawfully upon such roadway; and every person shall at all times and places exercise ordinary care for his own protection and safety.’
“The Court further charges you as a matter of law that a crosswalk is defined by City ordinance in Section 9.0102 as follows:
“‘(a) That part of a roadway at an intersection included within the connections of lateral lines of the sidewalk on opposite sides of the highway measured from the curbs, or in the absence of curbs from the edges of the traversable roadway.
‘“(b) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.’ ”

We believe that this instruction had many vices to condemn it. City Ordinance No. 9.1904 deals with a question of pedestrians crossing a roadway “within a business district.” Section 9.0102 of the City Code defines a business district as follows:

“Business District. The territory fronting upon a street or highway, including the street or highway, between successive intersections within the city where fifty per cent or more of the frontage between such successive intersections is occupied by buildings in use for business, or where fifty per cent or more of the frontage for a distance of 300 feet or more is occupied by buildings in use for business and the said character of such territory is indicated by official traffic control devices.”

Yet the only evidence introduced on this subject was photographs showing the corners at the intersection, which photographs by themselves were wholly insufficient under the definition of “Business District” quoted above to determine the nature of this intersection. Moreover, the inclusion of three different and unrelated ordinances in one charge was confusing to the jury, and the mere recitation of the ordinances without explanation as to the manner in which they were to be applied to the facts in the case was probably more confounding than illuminating.

The submission of this instruction to the jury, accordingly, was error.

Charge No. 5 reads:

“5. The Court charges you as a matter of law that where a pedestrian departs from a crosswalk upon which she would have received no injury and crosses the intersection elsewhere and is injured, she must be held to have assumed the risk which lay in the path which she chose, and in such case plaintiff’s husband cannot recover for any damages he may have sustained as a reason of his wife’s injuries.”

This charge was based on the case of City of Dayton v. Taylor’s Admr., 62 Oh St 11, 56 N. E. 480, the second paragraph of the syllabus of which reads:

“2. A pedestrian who, without necessity and for his own pleasure and convenience, departs from the sidewalks and street crossings, upon which he would have avoided injury, and crosses a street intersection diagonally, and is injured by slipping into a catch-basin which lay between the crossings, must be held to have assumed the risks which lay in the path which he thus chooses.”

We are of the opinion that the facts before the jury in the instant case did not justify an instruction on assumption of risk.

Charge No. 6 reads:

“6. The Court charges you as a matter of law that if you find the plaintiff’s wife was looking elsewhere and not looking where she was stepping at the time the accident occurred and if you And that such conduct was a proximate cause of the injuries to plaintiff’s wife, and that the failure of plaintiff’s wife to exercise reasonable care for her own safety proximately contributed to cause her injuries, then plaintiff cannot recover and your verdict must be for the defendant City of Cleveland.”

In this charge the court, in effect, instructed the jury that plaintiff’s wife was guilty of negligence as a matter of law if she “was looking elsewhere and not looking where she was stepping at the time the accident occurred.” We feel that the court in this instance was invading the province of the jury for the reason that it was for the jury to determine whether such conduct, if it occurred, was negligent under all surrounding circumstances. It was error, therefore, to have submitted it to the jury.

Charge No. 7 is in the same vein and likewise erroneous.

Charge No. 8 reads:

“8. The Court instructs you as a matter of law that plaintiff’s evidence of damages because of loss sustained by selling his house and purchasing another one of one floor only is too speculative and is not to be considered in assessing damages should you determine that he is entitled to recover damages: For the reason that such damages are not alleged in plaintiff’s petition and for the further reason that such damages are too remote to be attributable to the injuries to his wife and do not proximately result from the injury complained of in the petition, and further that such damages are no proper part of a loss of service action.”

This instruction as a principle of law with respect to damages was correct. The evidence in support of such damages, however, was speculative in nature and for that reason inadmissible and should have been objected to when offered during the trial.

Defendant argues that the verdict of the jury may have been based upon the finding that the plaintiff’s wife had been guilty of contributory negligence, and that, since the plaintiff did not submit interrogatories to test the verdict, the two-issue rule is applicable. This contention would have great force were the errors with respect to the instructions submitted to the jury confined to but one of the issues in this case. However, since we have determined that the instructions given the jury before argument were prejudicially erroneous with respect to both main issues, the logic and force of the two-issue rule collapses and fails of application here. In Sites v. Haverstick, 23 Oh St 626, the syllabus reads as follows:

“1. Where the jury, by their verdict, ‘finds the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdict finding each and all of the issues therein for such party.
“2. In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment rendered. the judgment will not be reversed for error in the instructions of the court relating exclusively to the other.” (Emphasis ours.)

In 4 O. Jur. (2d) 33, we find the following:

“Of course it (the ‘two issue’ rule) cannot be applied where the circumstances are such that the general verdict could not be a finding for the successful party on all the issues, * * * where there are various errors some of which relate to one issue and some to the other so that no issue was tried without error * * *”

See: Johnson v. Hunter. 166 Oh St 289, 293; Gallup v. Toledo Term. Rd. Co., 28 Oh Ap 447; 5 Abs 513; McCombs v. Landes. 35 Oh Ap 164; 171 N. E. 862; Mulcahy v. Deitrick, 39 Oh Ap 65; 176 N. E. 481; and Hamilton v. Gilkey, 56 Oh Ap 438; 10 N. E. (2d) 1014.

The judgment accordingly is reversed, and the cause remanded to the Cleveland Municipal Court for further proceedings according to law. Exceptions. Order see journal.

SKEEL, PJ, concurs in the judgment.

HURD, J, concurs in the opinion and in the judgment.

CONCURRING OPINION

Ey SKEEL, PJ.:

I concur in the judgment of reversal upon the grounds stated in the majority opinion except insofar as the error found in giving special instruction No. 3, requested by the defendant. This instruction was based on the law of the case of Kimball v. Cincinnati, 160 Oh St 370, 116 N. E. (2d) 708. the syllabus of that case being quoted in the majority opinion. I am unable to distinguish between “slight defects commonly found in sidewalks” caused by “variations from one-half to three-fourths of an inch” by reason of the unevenness of “adjacent sections of a sidewalk” and a variation of like dimension caused by the installation of a small water box cover near or in a crosswalk located on that portion of a roadway used both by vehicular and pedestrian traffic. This is equally true where the slight protrusion above the surface of the road by the water turn-off box of from one-half to three-quarters of an inch is j caused by the fact that in resurfacing the roadway, the final layer ofi asphalt of a thickness of about one-half, had not yet been installed. No ¶ legal distinction is to be found in the fact that the unevenness of the,, sidewalk came about by the weather and the passing of time and the] slight unevenness in the crosswalk resulted from making street repairs. ] If one is not dangerous, it must follow that the other is likewise not] dangerous to street users. j

Nor can any credit be given to one of the plaintiff’s witnesses who! testified that the top of the metal water box was four inches above the surface of the roadway. The defendant introduced photographs focused from both directions (east and west) which demonstrate with- < out peradventure of doubt that such estimate of the degree of unevenness was completely inaccurate. The effect of such testimony was only to destroy the credibility of the witness.


source: Caselaw Access Project

author: By JUSTICE REED. By JUSTICE FRANKFURTER, By JUSTICE BLACK,

license: Public Domain

text:
    GROBAN, In re.
    Supreme Court of the United States.
    No. 14.
    Decided February 25, 1957.

      James F. Graham, Zanesville, for appellants.
    Earl W. Allison, Jr., J. Ralston Werum, Columbus, for appellee.
   OPINION

By JUSTICE REED.

The question presented by this appeal is whether appellants had a constitutional right under the Due Process Clause of the Fourteenth Amendment to the assistance of their own counsel in giving testimony as witnesses at a proceeding conducted by the Ohio State Fire Marshal to investigate the causes of a fire.

After a fire occurred on the premises of a corporation owned and operated by appellants, the Fire Marshal started an investigation into the causes of the fire and subpoenaed appellants to appear as witnesses. The Fire Marshal refused to permit appellants’ counsel to be present at the proceeding, relying on §3737.13 R. C., which provides that the “investigation * * * may be private” and that he may “exclude from the place where [the] investigation, is. held, all persons, other than, tho.se required to be present * * Appellants declined to be sworn and testif without the immediate presence of their counsel who had accompaniei them to the hearing. Their refusal was treated as a violation of §3737.1; R. C., which provides that “no witness shall refuse to be sworn or refusi to testify * 1- V’ Sec. 3737.99(A) R. C., provides that “whoever violate; §3737.12 R. C., * * * may be summarily punished, by the officer concerned, by * * * commitment to the county jail until such person i; willing to comply with the order of such officer.” The Fire Marsha accordingly committed appellants to the county jail until such tim« as they should be willing to testify. Appellants’ application for a writ of habeas corpus was denied by the Ohio Court of Common Pleas, and this denial was affirmed on appeal by the Ohio Court of Appeals anc by the Ohio Supreme Court.

We postponed further consideration of the question of jurisdiction to the hearing on the merits. 351 U. S. 903, 76 S. Ct. 693, 100 L. Ed. 1440 The Ohio Supreme Court construed §3737.13 R. €., to authorize the Fire Marshal to exclude appellants’ counsel from the proceeding. Since appellants’ attack is on the constitutionality of that section, we have jurisdiction on appeal. 28 U. S. C. §1257(2d), 28 U. S. C. A. §1257(2).

We note at the outset that appellants explicitly disavow making any direct attack on the Fire Marshal’s power of summary punishment under §3737.99 (A) R. C. They challenge not the validity of the procedure by which they were committed to jail, but the constitutional sufficiency of the grounds on which they were so committed. Their sole assertion is that the Fire Marshal’s authority to exclude counsel under §3737.13 R. C., was unconstitutional because they had a right, under the Due Process Clause, to the assistance of their counsel in giving their testimony.

It is clear that a defendant in a state criminal trial has an unqualified right, under the Due Process Clause, to be heard through his own counsel. Chandler v. Fretag, 348 U. S. 3, 75 S. Ct. 1, 99 L. Ed. 4. Prosecution of an individual differs widely from administrative investigation of incidents damaging to the economy or dangerous to the public. The proceeding before the Fire Marshal was not a criminal trial, nor was it an administrative proceeding that would in any way adjudicate appellants’ responsibilities for the fire. It was a proceeding solely to elicit facts relating to the causes and circumstances of the fire. The Fire Marshal’s duty was to “determine whether the fire was the result of carelessness or design,” and to arrest any person against whom there was sufficient evidence on which to base a charge of arson.

The fact that appellants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them does not mean that they had a constitutional right to the assistance of their counsel. Appellants here are witnesses from whom information was sought as to the cause of the fire. A witness before a grand jury annot insist, as a matter of constitutional right, on being represented y his counsel, nor can a witness before other investigatory bodies. ?here is no more reason to allow the presence of counsel before a Fire iarshal trying in the public interest to determine the cause of a fire. Ibviously in these situations evidence obtained may possibly lay a witless wide open to criminal charges. When such charges are made in a :riminal proceeding, he then may demand the presence of his counsel ’or his defense. Until then his protection is the privilege against self-ncrimination. U. S. Const., Amend. V; Ohio Const., Art. I, §10. See Adamson v. People of State of California, 332 U. S. 46, 52, 67 S. Ct. 1672, 1675, 91 L. Ed. 1903. This is a privilege available in investigations as well as in prosecutions. See In re Groban, 164 Oh St 26, 28, 57 O. O. 70, 128 N. E. (2d), 106, 108, and 99 Oh Ap 512, 515, 59 O. O. 372, 135 N. E. (2d), 477, 480; McCarthy v. Arndstein, 266 U. S. 34, 40, 45 S. Ct. 16, 17, 69 L. Ed. 158; Adams v. State of Maryland, 347 U. S. 179, 74 S. Ct. 442, 98 L. Ed. 608. We have no doubt that the privilege is available in Ohio against prosecutions as well as convictions reasonably feared. Cf. Ullman v. United States, 350 U. S. 422, 431, 76 S. Ct. 497, 502, 100 L. Ed. 511. The mere fact that suspicion may be entertained of such a witness, as appellants' believed existed here, though without allegation of facts to support such a belief, does not bar the taking of testimony in a private investigatory proceeding.

It may be that the number of people present in a grand jury proceeding gives greater assurance that improper use will not be made of the witness’ presence. We think, however, that the presumption of fair and orderly conduct by the state officials without coercion or distortion exists until challenged by facts to the contrary. Possibility of improper exercise of opportunity to examine is not in our judgment a sound reason to set aside a state’s procedure for fire prevention. As in similar situations, abuses may be corrected as they arise, for example, by excluding from subsequent prosecutions evidence improperly obtained.

Ohio, like many other states, maintains a division of the state government directed by the Fire Marshal for the prevention of fires and reduction of fire losses. See. 3737.13 E. C., which has been in effect since 1900, represents a determination by the Ohio legislature that investigations conducted in private may be the most effective method of bringing to light facts concerning the origins of fires, and, in the long run, of reducing injuries and losses from fires caused by negligence or by design. We cannot say that this determination is unreasonable. The presences of advisors to witnesses might easily so far encumber an investigatory I proceeding as to make it unworkable or unwieldy. And with so weighty a public interest as fire prevention to protect, we cannot hold that the balance has been set in such a way as to be contrary to “fundamental principles of liberty and justice.” Hebert v. State of Louisiana, 272 U. S. 312, 316, 47 S. Ct., 103, 104, 71 L. Ed. 270. That is the test to measure the validity of a state statute under the Due Process Clause.

Appellants urge, however, that the Fire Marshal’s power to exclude counsel under §3737.13 R. C., must be considered in the light of his power of summary punishment under §3737.99 (A) R. C., and they would have us hold that, so considered, his power to exclude counsel was unconstitutional. We held in In re Oliver, 333 U. S. 257, 68 S. Ct. 499, 92 L. Ed. 682, that a witness before a one-man grand jury, a judge, could not constitutionally be punished summarily for contempt of the grand jury without being allowed to be represented by his counsel. We see no relation between the premise that appellants could not be punished without representation by counsel and the conclusion that they could not be questioned without such representation. Sec. 3737.13 R. C., may contain a constitutional flaw if it should be construed to authorize the exclusion of counsel while the Fire Marshal determines that a witness has violated §3737.12 R. C., and orders the witness committed. The sole assertion of a constitutional violation that appellants relied upon before the Ohio Supreme Court and the only one open on the record here — the authorization in §3737.13 R. C., of the exclusion of counsel while a witness testifies — is not well founded. We hold that appellants had no constitutional right to be assisted by their counsel in giving testimony at the investigatory proceeding conducted by the Fire Marshal, and that §3737.13 R. C., insofar as it authorizes the exclusion of counsel while a witness testifies, is not repugnant to the Due Process Clause of the Fourteenth Amendment.

Affirmed.

CONCURRING OPINION

By JUSTICE FRANKFURTER,

whom JUSTICE HARLAN joins.

To whatever extent history may confirm Lord Acton’s dictum that power tends to corrupt, such a doctrine of fear can hardly serve as a test, under the Due Process Clause of the Fourteenth Amendment, of a particular exercise of a state’s legislative power. And so, the constitutionality of a particular statute expressive of a state’s view of desirable policy for dealing with one of the rudimentary concerns of society — the prevention of fires and the ascertainment of their causes — and directed towards a particular situation, cannot be determined by deriving a troupe of hobgoblins from the assumption that such a particularized exercise of power would justify an unlimited, abusive exercise of power.

If the Ohio legislation were directed explicitly or by obvious design oward secret inquisition of those suspected of arson, we would have a vholly different situation from the one before us. This is not a statute iirected to the examination of suspects. It is a statute authorizing in-luiry by the chief guardian of a community against the hazards of fire nto the causes of fires. To be sure, it does not preclude the possibility ;hat a suspect might turn up among those to be questioned by the Fire Marshal. But the aim of the statute is the expeditious and expert as-:ertainment of the causes of fire. The Fire Marshal is not a prosecutor, though he may, like others, serve as a witness of the prosecution. In various proceedings, as for instance under some workmen’s compensation laws, the presence of lawyers is deemed not conducive to the economical and thorough ascertainment of the facts. The utmost devotion to one’s profession and the fullest recognition of the great role of lawyers in the evolution of a free society cannot lead one to erect as a constitutional principle that no administrative inquiry can be had in camera unless a lawyer be allowed to attend.

The assumption that as a normal matter such an inquiry carries with it deprivation of some rights of a citizen assumes inevitable misuse of authority. For good reasons, and certainly for constitutional purposes, the contrary assumption must be entertained. The potential danger most feared is that it will invade the privilege against self-incrimination in states where it is constitutionally recognized. But that privilege is amply safeguarded by the decision of the Supreme Court of Ohio in this case. We are not justified in invalidating this Ohio statute on the assumption that people called before the Fire Marshal would not be aware of their privilege not to respond to questions the answers to which may tend to incriminate. At a time when this privilege has attained the familiarity of the comic strips, the assumption of ignorance about the privilege by witnesses called before the Fire Marshal is too far-fetched an assumption on which to invalidate legislation.

What has been said disposes of the suggestion that, because this statute relating to a general administrative, nonprosecutorial inquiry into the causes of fire is sustained, it would follow that secret inquisitorial powers given to a District Attorney would also have to be sustained. The Due Process Clause does not disregard vital differences. If it be said that these are all differences of degree, the decisive answer is that recognition of differences of degree is inherent in due regard for due process. We are admonished from time to time not to adjudicate on the basis of fear of foreign totalitarianism. Equally so should we not be guided in the exercise of our reviewing power over legislation by fear of totalitarianism in our country.

For these reasons I join the opinion of the court.

DISSENTING OPINION

By JUSTICE BLACK,

with whom The CHIEF JUSTICE, JUSTICE DOUGLAS and JUSTICE BRENNAN join.

I believe that it violates the protections guaranteed every person by the Due Process Clause of the Fourteenth Amendment for a state to compel a person to appear alone before any law-enforcement officer and give testimony in secret against his will. Under the reasoning of the majority every state and federal law-enforcement officer in this country could constitutionally be given power to conduct such secret compulsory examinations. This would be a complete departure from our traditional methods of law enforcement and would go a long way toward placing “the liberty of every man in the hands of every petty officer.” By sanctioning the Ohio statutes involved here the majority disregards “this nation’s historic distrust of secret proceedings” and decides contrary to the general principle laid down by this court in one of its landmark decisions that an accused “* * * requires the guiding hand of counsel at every step in the proceedings against him.”

The Ohio statutes give the state Fire Marshal and his deputies broad power to investigate the cause of fires. These officers can summon any! person to appear before one or more of them to testify under oath. They can punish him summarily for contempt if he refuses to answer their | questions or if he disobeys any of their orders. They can exclude any I person they wish from the examination, including the witness’ counsel. I After the questioning the Marshal or his deputy can arrest the witness I if he believes that there is evidence sufficient to charge him with arson* or a similar crime. Any statements taken from the suspect during these secret sessions must be turned over to the Prosecuting Attorney for use in any subsequent prosecution. An “Arson Bureau” is established in the Fire Marshal’s office and it is provided with a staff charged with the duty of investigating fires to determine if a crime has been committed. The Fire Marshal and his deputy in charge of the “Arson Bureau” are expressly made “* * r responsible * * * for the prosecution of persons believed to be guilty of arson or a similar crime.” The statutory provisions show that the Fire Marshal and his deputies are given the ordinary duties of policemen with respect to “arson and similar crimes.”

After appellant’s place of business at Dresden, Ohio, burned down, a deputy fire marshal summoned appellants to appear before him with their business records to answer questions about the fire. According to their unchallenged affidavit, the Fire Marshal believed that they had started the fire. Appellants appeared before the deputy with their lawyer, stating that they were willing to testify fully but only if they could have their counsel present during the interrogation. The deputy nformed them that the interrogation would be.held in private and reused to admit their lawyer. Under these conditions they refused to estify. The deputy proceeded to hold them in contempt and ordered hem imprisoned until they were willing to testify before him in secret. Appellants’ counsel was not present at the time they refused to testify ror when they were adjudged in contempt and ordered imprisoned.

Appellants instituted this action for a writ of habeas corpus in a state court of Ohio contending that their imprisonment would be cern-ir ary to the Fourteenth Amendment. The Ohio Supreme Court rejected ;his contention and affirmed the judgments of lower state courts refusing bo issue the writ. This court upholds the decision below, but even on the narrow grounds upon which it chooses to decide the case I think that its holding is erroneous and constitutes a very dangerous precedent. E believe that the judgments below should be reversed because it is contrary to due process of law to imprison appellants for refusing to testify before the deputy Fire Marshal in secret.

A secret examination such as the deputy proposed to conduct is fraught with dangers of the highest degree to a witness who may be prosecuted on charges related to or resulting from his interrogation. Under the law of Ohio it seems clear that any statement allegedly secured from the witness may be used as evidence against him at a preliminary examination to justify his detention, before a grand jury to secure his indictment, and at the formal trial to obtain his conviction. The witness has no effective way to challenge his interrogator’s testimony as to what was said and done at the secret inquisition. The officer’s version frequently may reflect an inaccurate understanding of an accused’s statements or, on occasion, may be deliberately distorted or falsified. While the accused may protest against these misrepresentations, his protestations will normally be in vain. This is particularly true when the officer is accompanied by several of his assistants and they all vouch for his story. But when the public, or even the suspect’s counsel, is present the hazards to the suspect from the officer’s misunderstanding o twisting of his statements or conduct are greatly reduced.

The presence of legal counsel or any person who is not an executiv officer bent on enforcing the law provides still another protection to th witness. Behind closed doors he can be coerced, tricked or confused b; officers into making statements which may be untrue or may hide thi truth by creating misleading impressions. While the witness is in thfl custody of the interrogators, as a practical matter, he is subject to theiii uncontrolled will. Here it should be pointed out that the Ohio law place* no restrictions on where the interrogations can be held or their dura-j tion. Exemplifying the abuses which may occur in secret proceedings! this court has repeatedly had before it cases where confessions have beer obtained from suspects by coercive interrogation in secret. While the ircumstances in each of these cases have varied, in all of them, as well s in many others, the common element has been the suspect’s inter-ogation by officers while he was held incommunicado without the resence of his counsel, his friends or relatives, or the public. As was aid in a concurring opinion in Haley v. State of Ohio, 332 U. S. 596, at page 605, 68 S. Ct. 302, at page 306, 92 L. Ed. 224: “An impressive series f cases in this and other courts admonishes of the temptations to abuse f police endeavors to secure confessions from suspects, through pro-racted questioning carried on in secrecy, with the inevitable dis-uietude and fears police interrogations naturally engender in indi-iduals questioned while held incommunicado, without the aid of coun-el and unprotected by the safeguards of a judicial inquiry.” Nothing rould be better calculated to prevent misuse of official power in dealing vith a witness or suspect than the scrutiny of his lawyer or friends or wen of disinterested bystanders.

A witness charged with committing contempt during the secret in-errogation faces the gravest handicaps in defending against this charge. The interrogating officers may assert that he engaged in certain con-umacious behavior before them and seek to imprison him. Even when ;he charges are tried by someone other than his interrogators, the iccused’s efforts to show that the actual events were not as pictured by the interrogating officers would normally be futile if he could call on n one to corroborate his testimony. And when a witness is deprived of th advice of counsel he may be completely unaware that his conduct ha crossed the obscure boundary and become contemptuous. Moreove: executive officers will be somewhat more chary in exercising the danger ous contempt power if their actions are subject to external scrutiny.

I also firmly believe that the Due Process Clause requires that a per son interrogated be allowed to use legal counsel whenever he is com pelled to give testimony to law-enforcement officers which may be instru mental in his prosecution and conviction for a criminal offense. Thi court has repeatedly held that an accused in a state criminal prosecutio: has an unqualified right to make use of counsel at every stage of the pro ceedings against him. The broader implications of these decision seem to me to support appellants’ right to use their counsel when ques tioned by the deputy fire marshal. It may be that the type of interroga tion which the Fire Marshal and his deputies are authorized to condue would not technically fit into the traditional category of formal crimina proceedings, but the substantive effect of such interrogation on ai eventual criminal prosecution of the person questioned can be so grea that he should not be compelled to give testimony when he is deprive; of the advice of his counsel. It is quite possible that the conviction o a person charged with arson or a similar crime may be attributabh largely to his interrogation by the Fire Marshal. The right to use coun sel at the formal trial is a very hollow thing when, for all practica purposes, the conviction is already assured by pretrial examination.’

Looking at the substance of things, the Fire Marshal’s secret inter rogation contains many of the dangers to an accused that would b present if he were partially tried in secret without the assistance o counsel for “arson or a similar crime.” Suppose that at the commencement of a criminal trial, the judge, acting under statutory authorization, expelled everyone from the courtroom but the prosecuting attorney and his assistants and allowed them to question the accused “privately.” After such interrogation the doors were thrown open, the jury recalled, and the jurors given a resume or transcript of the accused’s purported testimony. And then the defendant’s lawyer, who had been excluded from the secret examination, was allowed to make such defense as he could. Surely no one would contend that such a proceeding was due process of law. Yet the techniques as well as the end effects of the Fire Marshal’s seeret interrogation are substantially the same.

It is said that a witness can protect himself against some of the many abuses possible in a secret interrogation by asserting the privilege against self-incrimination. But this proposition collapses under anything more than the most superficial consideration. The average witness has little if any idea when or how to raise any of his constitutional privileges. There is no requirement in the Ohio statutes that the fire-prevention officers must inform the witness that he is privileged not to incriminate himself. And in view of the, intricate possibilities of waiver which surround the privilege he may easily unwittingly waive it. If the witness is coerced or misled by his interrogators he may not dare to raise the privilege. Undoubtedly he will be made aware that hanging over his head at all times is the officer’s power to punish him for contempt — a power whose limitations the witness will not understand. Furthermore, the Fire Marshal or his deputies would seldom be competent to decide if the privilege has been properly claimed or, even if they wish, to instruct the witness how to make correct use of it.

To support its decision that Ohio can punish a witness for refusing to submit to the Fire Marshal’s seeret interrogation, the majority places heavy reliance on the practice of examining witnesses before a grand jury in secret without the presence of the witness’ counsel. But any surface support the grand jury practice may lend disappears upon analysis of that institution. The traditional English and American grand jury is composed of 12 to 23 members selected from the general citizenry of the locality where the alleged crime was committed. They bring into the grand jury room the experience, knowledge and viewpoint o all sections of the community. They have no axes to grind and are no charged personally with the administration of the law. No one of then is a prosecuting attorney or law-enforcement officer ferreting out crime It would be very difficult for officers of the state seriously to abuse o: deceive a witness in the presence of the grand jury. Similarly thi presence of the jurors offers a substantial safeguard against the officer’: misrepresentation, unintentional or otherwise, of the witness’ statements and conduct before the grand jury. The witness can call on th( grand jurors if need be for their normally unbiased testimony as to wha' occurred before them.

The majority also relies on a supposed proposition that there is nc right to use counsel in an administrative investigation. Here it i: relevant and significant to point out that in 1946 Congress specificallj required in the Administrative Procedure Act that:

“Any person compelled to appear in person before any agency oi representative thereof shall be accorded the right to be accompanied; represented, and advised by counsel or, if permitted by the agency, by other qualified representative.”

In reporting the bill which was substantially enacted as the Ad ministrative Procedure Act the Senate Judiciary Committee unanimously declared:

“By enacting this bill, the Congress — expressing the will of the people — will be laying down for the guidance of all branches of the Government and all private interests in the country a policy respecting the minimum requirements of fair administrative procedure.” And the House Judiciary Committee in reporting the House version of the Administrative Procedure Act stated:
“The bill is an outline of minimum essential rights and procedures.” Heretofore this court has never held and I would never agree that an administrative agency conducting an investigation could validly compel a witness to appear before it and testify in secret without the assistance of his counsel.

In any event, the investigations authorized by the Ohio statutes are far more than mere administrative inquiries for securing information useful generally in the prevention of fires. Rather, these statutes command action with a view toward the apprehension and prosecution of persons believed guilty of certain crimes. The Marshal or his deputies may compel a person suspected of arson or a similar offense — as appellants apparently were — to appear and give testimony under oath. And is previously indicated any statement elicited from such person may be ised as evidence against him. Once testimony has been taken from a suspect the duties of the Marshal and his deputies are not at an end. They must arrest the witness if they believe that the evidence is suf-icient to charge him with certain crimes. All testimony taken from him and all other evidence must be turned over to the prosecuting attorney. The Fire Marshal and his deputy in charge of the “Arson Bureau” are specifically made “* * * responsible * * * for the prosecution of persons aelieved to be guilty of arson or a similar crime.” The foregoing clearly lemonstrates that the Fire Marshal’s interrogation is, and apparently vas intended to be, an important and integral part in the prosecution of ;he persons for arson or a similar crime. The rights of a person who is examined in connection with such crimes should not be destroyed nerely because the inquiry is given the euphonious label “administra-iive.”

Finally it is argued that the Fire Marshal and his deputies should have the right to exclude counsel and such other persons as they choose so that their investigatory proceedings” will not be “unduly encumbered.” From all that appears the primary manner in which the presence of counsel or the public would “encumber” the interrogation would be by protecting the legitimate rights of the witness. It is undeniable that law-enforcement officers could rack up more convictions if they were not “hampered” by the defendant’s counsel or the presence of others who might report to the public the manner in which people were being convicted. But the procedural safeguards deemed essential for due process have been imposed deliberately with full knowledge that they will occasionally impede the conviction of persons suspected of crime.

The majority states that “with so weighty a public interest as fire prevention to protect,” they cannot hold that it violates the Due Process Clause to compel a witness to testify at a secret proceeding. But is th public’s interest in fire prevention so weighty that it requires denyin the person interrogated the basic procedural safeguards essential t justice? Suppose that Ohio authorized the Chief of State Police and hi deputies to inquire into the causes and circumstances of crime generall and gave them power to compel witnesses or persons suspected of crim to appear and give testimony in secret. Since the public’s interest i: crime prevention is at least as great as its interest in fire prevention, th reasoning used in the majority’s opinion would lead to the approval o such means of “law enforcement.” In fact, the opinion could readily b applied to sanction a grant of similar power to every state trooper, police man, sheriff, marshal, constable, FBI agent, prosecuting attorney, im migration official, narcotics agent, health officer, sanitation inspectoi building inspector, tax collector, customs officers and to all the othe countless state and federal officials who have authority to investigat violations of the law. I believe that the majority opinion offers a com pletely novel and extremely dangerous precedent — one that could b used to destroy a society of liberty under law and to establish in it place authoritarian government.

No one disputes that Ohio has a great interest in the enforcemen of its fire laws. But there is nothing which suggests that it is essentia to adequate enforcement of these laws to give the Fire Marshal and hi deputies the extreme powers of interrogation which they proposed t exercise here. This method of law enforcement has heretofore beei deemed inconsistent with our system of justice. As Justice Frankfurte said in announcing the court’s opinion in Watts v. State of Indiana, 33 U. S. 49, at page 54, 69 S. Ct. 1347, at page 1350, 93 L. Ed. 1801:

“Ours is the accusatorial as opposed to the inquisitorial systerr Such has been the characteristic of Anglo-American criminal justice sine it freed itself from practices borrowed by the Star Chamber from th Continent whereby an accused was interrogated in secret for hours o: end. * * * Under our system society carries the burden of proving it charge against the accused not out of his own mouth. It must establisl 3 case, not by interrogation of the accused even under judicial safe-lards, but by evidence independently secured through skillful investi-ition.”

Secret inquisitions are dangerous things justly feared by free men rerywhere. They are the breeding place for arbitrary misuse of Scial power. They are often the beginning of tyranny as well as indispensable instruments for its survival. Modern as well as ancienj history bears witness that both innocent and guilty have been seized bl officers of the state and whisked away for secret interrogation or worsl until the groundwork has been securely laid for their inevitable convic| tion. While the labels applied to this practice have frequently changec the central idea wherever and whenever carried out remains unchanging —extraction of “statements” by one means or another from an individual by officers of the state while he is held incommunicado. I reiterate mj belief that it violates the Due Process Clause to compel a person t<j answer questions at a secret interrogation where he is denied legal asl sistance and where he is subject to the uncontrolled and invisiblJ exercise of power by government officials. Such procedures are a gravq threat to the liberties of a free people.

      . Page’s Ohio. Rev. Code, §3737.13.

      . Appellants were released on bond and have never in fact been incarcerated.

      . In re Groban, 164 Oh St 26, 57 O. O. 70, 128 N. E. (2d), 106.

      . Page’s Ohio Rev. Code §§3737.08, 3737.10.

      . In re Black, 2 Cir., 47 F. (2d), 542; accord, United States v. Blanton, D. C., 77 F. Supp. 812; see United States v. Scully, 2 Cir, 225 F. (2d) 113, 116.

      . Bowles v. Baer, 7 Cir., 142 F. (2d), 787; United States v. Levine, D. C., 127 F. Supp. 651. Note, Rights of Witnesses in Administrative Investigations, 54 Harv. L. Rev. 1214, 1216-1217.

      . Cf. Ullman v. United States, 350 U. S. 422, 76 S. Ct. 497, 100 L. Ed. 511; Hoffman v United States, 341 U. S, 479, 486, 71 S. Ct., 814, 95 L. Ed. 1118; Smith v. United States, 337 U. S. 137, 150, 69 S. Ct. 1000, 1007, 93 L. Ed. 1264; Hale v. Henkel, 201 U. S. 43, 66-67, 28 S. Ct. 370, 375-376, 50 L. Ed. 652.

      . See National Fire Protection Association Handbook of Fire Protection (10th ed. 1948) 41-45; Annual Report of the Division of (Ohio) State Fire Marshal for 1955.

      . Ohio Laws 1900, Senate Bill No. 51.

      . This was recognized in Ex parte Sullivan, D. C., 107 F. Supp. 514 517. There two persons suspected of crime had been examined by law enforcement officers in secret without the presence of counsel and had bee: tricked into making statements which were instrumental in their conviction At pages 517-518, the district judge observed:
      In view of (Powell v. State of Alabama, 287 U. S., 45, 53 S. Ct. 55, 77 L Ed. 158), to mention but one of many cases, unquestionably Petitioners wer entitled to have effective counsel AT THE TRIAL. The question here i how they ever could have had effective counsel at the trial, no matter hov skilled, in view of what went on before trial. They were denied effectiv counsel at the trial itself because of what went on before trial while th' defendants were without counsel, and absolutely under the control of th prosecution. * * * One can imagine a cynical prosecutor saying: ‘Let then have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.’” (Emphasis not sup plied.)
      Also see Jackson, J., concurring in Watts v. State of Indiana, 338 U. S. 49, 57, 69 S. Ct. 1347, 1351, 93 L. Ed. 1801.

      . James Otis used this phrase in denouncing the Writs of Assistance and General Warrants in his famous argument in Paxton’s Case. 2 The Works of John Adams (Boston 1850) App. 524.

      . In re Oliver, 333 U. S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 682.

      . Powell v. State of Alabama, 287 U. S. 45, 69, 53 S. Ct. 55, 64, 77 L. Ed. 158.

      . Page’s Ohio Rev. Code §§3537.11, 3537.12.

      . Id., §§3737.12, 3737.99A.

      . Id., §3737.13.

      . Id. §3737.10.

      . Id., §3737.10.

      . Id., §3737.02.

      . I would also reverse the decision below because appellants were found guilty of contempt and sentenced to jail in a proceeding where they were denied the benefit of counsel. This Court has expressly held that a person charged with contempt has a constitutional right to be heard through counsel of his own choosing at a trial on the contempt charge. In re Oliver, 333 U. S. 257, 68 S. Ct. 499, 92 L. Ed. 682. While the majority refuses to act on the denial here by claiming that appellants failed to challenge it in the Ohio Supreme Court or in their appeal to this Court, the record convinces me that the matter has been properly raised for our consideration. When a person is to be imprisoned as the result of a proceeding in, which he was denied his constitutional rights, we should not be anxious to conclude that he failed to raise the constitutional questions in the correct procedural form. Cf. Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 393, 57 S. Ct. 809, 811, 81 L. Ed. 1177; Hodges v. Easton, 106 U. S. 408, 412, 1 S. Ct. 307, 310, 27 L. Ed. 169.

      . See Generally 15 O. Jur. 2d, Criminal Law §388.

      . In this respect it is more important to note that under the Ohio statutes the Fire Marshal or his deputies may permit such persons as they wish to attend the interrogation.

      . This has been recognized from ancient times. As it is said in Matthews 18:15-16:
      “Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou has gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.”
      Blackstone many centuries lated noted that
      “(The) open examination of witnesses VIVA VOCE, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk. * * * There an artful or careless scribe may make a witness speak what he never meant. * * *” 3 Blackstone Commentaries 373.
      And Bentham subsequently pointed out:
      “In case of registration and recordation of the evidence, publicity serves as a security for the correctness in every respect (completeness included) of the work of the registrator.
      “In case of material incorrectness, whether by design or inadvertence,— so many auditors present * * * any or each of whom may eventually be capable of indicating, in the character of a witness, the existence of the error, and the tenor (or at least the purport) of the alteration requisite for the correction of it.” 1 Bentham, Rationale of Judicial Evidence, 523 (1827).

      . See, e. g., Fikes v. State of Alabama, 352 U. S. 191, 77 S. Ct. 281, 1 L. Ed. (2d) 246; Leyra v. Denno, 347 U. S. 556, 74 S. Ct. 716. 98 L. Ed. 948; Watts v. State of Indiana, 338 U. S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801; Turner v. Commonwealth of Pennsylvania, 338 U. S. 62, 69 S. Ct. 1352, 93 L. Ed. 1810; Harris v. State of South Carolina, 338 U. S. 68, 69 S. Ct. 1354, 93 L. Ed. 1815; Haley v. State of Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224; Malinski v. People of State of New York, 324 U. S. 401, 65 S. Ct. 781, 89 L. Ed. 1029; Ashcraft v. State of Tennessee, 322 U. S. 143, 64 S. Ct. 921, 88 L. Ed. 1192; Ward v. State of Texas, 316 U. S. 547, 62 S. Ct. 1139, 86 L. Ed. 1663; White v. State of Texas, 310 U. S. 530, 60 S. Ct. 1032, 84 L. Ed. 1342; Chambers v. State of Florida, 309 U. S. 227, 60 S. Ct. 472, 84 L. Ed. 716. Por a discussion of the dangers and abuses arising from the secret interrogation of suspects by police see the report of the American Bar Association’s Committee on Lawless Enforcement of the Law, 1 Ajper. Joiirn-of Police Science, 575,

      . In United States v. Minker, 350 U. S. 179, at page 188, 76 S. Ct. 281, at page 287, 100 L. Ed. 185, the court pointed out with regard to proposed examinations by immigration officers that:
      “It does not bespeak depreciation of official zeal, nor does it bring into juestion disinterestedness, to conclude that compulsory EX PARTE adminis-;rative examinations, untrammelled by the safeguards of a public adversary judicial proceeding, afford too ready opportunities for unhappy consequences ;o prospective defendants in denaturalization suits.”

      . It seems wholly improper to “wait and see” and in each case whether a witness has been coerced or tricked into giving involuntary state-nents at the secret interrogation and then to set aside convictions which may be based on such statements. This “abuse-by-abuse” approach fails to jive the person interrogated sufficient protection. Usually he has no substantial chance of showing that the one or more interrogators used improper means to elicit involuntary statements from him. Only in the most extreme cases will this Court, or any other, be able to find that statements were made involuntarily in the face of the interrogating officers’ testimony that they were spontaneous and freely given. Apparently in Ohio, as in most jurisdictions, the suspect faces the additional obstacle that his alleged statements are presumed to be voluntary and he has the burden of proving that they were not. See 15 O. Jur. 2d, Criminal Law, §387. In the few cases where a person interrogated could prove that his statements were made involuntarily he will still be subjected to considerable expense, inconvenience and unfavorable publicity. More important, he will already have suffered mistreatment at the hands of his interrogators.

      . Here, of course, the interrogators were authorized to try thp charges of contempt which they preferred.

      . See, e. g., Powell v. State of Alabama, 287 U. S. 45, 53 S. Ct. 55, 7 L. Ed. 158; Chandler v. Fretag, 348 U. S. 3, 75 S. Ct. 1, 99 L. Ed. 4.

      . See, e. g., Rogers v. United States, 340 U. S. 367, 71 S. Ct. 438, 95 L. Ed. 344.

      . All of the cases cited by the majority as authority for the practice before grand juries apparently involved a traditional grand jury. It has been suggested that a state can constitutionally provide for grand juries composed of less than 12 persons. See In re Murchison, 349 U. S. 133, 139, 140, 75 S. Ct. 623, 626, 627, 99 L. Ed. 942 (dissenting opinion); In re Oliver, 333 U. S. 257, 283, 283-284, 68 S. Ct. 499, 512, 512-513, 92 L. Ed. 682 (dissenting opinion). Even if this suggestion is correct it certainly does not follow that a state can designate one or more of its law-enforcement officers as a grand jury and constitutionally give them power to compel witnesses to appear and give testimony in secret without the presence of counsel. This point was expressly not considered in In re Oliver, supra, 333 U. S. at page 266, 68 S. Ct. at page 503. Such power in the hands of law-enforcement officers is equally obnoxious to due process whether they are styled as a grand jury, as fire-prevention officers or simply as policemen.

      . The only authorities offered by the majority as support for this proposition are three lower federal court decisions.

      . 5 U. S. C. §1005(a), 5 U. S. C. A. §1005(a).

      . S. Rep. No. 752, 79th Cong., 1st Sess. 31.

      . H. R. Rep. No. 1980, 79th Cong., 2d Sess. 16.

      . It seems highly unrealistic to equate this interrogation with a proceeding involving a claim for workmen’s compensation.

      . Nor should they be defeated because the Fire Marshal and his deputies are given other duties besides investigating fires to determine if any criminality is involved. For obvious reasons these other responsibilities do not make the interrogation proposed here any less objectionable.

      . Perhaps, if a real need could be shown, counsel could be restricted to advising his client and prohibited from making statements or asking questions. And there are other alternatives, much less drastic and prejudicial to the witness than the complete exclusion of his counsel, which might provide satisfactory protection for the witness without unduly impairing the efficiency of the examination.

      . As Bentham said of criminal proceedings:
      “Without publicity, all other checks are insufficient; in comparison of publicity all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks, as cloaks in reality, as cheeks only in appearance.” 1 Bentham, Rationale of Judicial Evidence (1827), 524.

      . See United States v. Minker, 350 U. S. 179, 76 S. Ct. 281, 100 L. Ed. 185.

      . The court’s opinion does not deny that secret inquisitorial power could be given such law enforcement officers. A concurring opinion sug gests that the grant of such broad power might be unconstitutional so fa as a district attorney is concerned. However if policemen in general ca: constitutionally subject persons to secret compulsory interrogation, how ca it conceivably be said that a district attorney could not? I can see n constitutional means of distinguishing this Ohio fire policeman from an other policeman or law enforcement officer. Any attempted constitutions distinction between these various law enforcement officers would be purel artificial. The constitutionality of the Ohio law authorizing secret inter rogation by fire marshals acting as policemen in arson cases should not fc rested on a conjecture that such an artificial distinction will be drawn b this court at some future day.

      . A survey of British law reveals nothing which is equivalent to the rpe of examination that the Ohio Fire Marshal is allowed to conduct, fficial inquiries into the cause of fires are generally made by the police. (W)hen the police are inquiring into a case, they have no power to corn-el anyone to give them information; a witness may be compelled to attend
      COURT and there give evidence, but before proceedings are actually rought he can refuse to say a word.” Jackson, The Machinery of Justice i England, 137. And in 1929 the Report of the Royal Commission on Police ’owers and Procedure at p. 118 recommended that “A rigid instruction hould be issued to the Police that no questioning of a prisoner, or a ‘person a custody,’ about any crime or offense with which he is, or may be, charged, hould be permitted.” It is doubtful if any statements obtained by the olice by secret interrogation of a suspect would be admitted in evidence in . subsequent trial. See Rex v. Grayson, 16 Crim. App. R. 7 (1921); 43 Harv. L. Rev. 618; 43 Ky. L. Rev. 403.
      In France official inquiries into fires are carried out as part of the ■eneral system of investigating crimes. The preliminary investigation is nder the control of the public prosecutor and is conducted by the police, ’hey have no authority to examine unwilling witnesses. The interrogation f such witnesses and of suspects is the function of the Juge ¿’Instruction, vho is a judge with legal training. Prior to 1897 he had broad power to xamine a witness under oath in secret without counsel. See Ploscowe, levelopment of Inquisitorial and Accusatorial Elements in French Procedure, ¡3 J. Crim. L. & Crimmol, 372. In 1882 Stephen commented on these secret iroceedings as follows:
      “To a person accustomed to the English system and to English ways of hinking and feeling * * * the French system would be utterly intolerable in üngland. The substitution of a secret (interrogation) for our open investiga-ron before the committing magistrate would appear to us to poison justice it its source.” 1 Stephen, History of the Criminal Law of England, 565 [1882).
      In response to widespread demands French law was changed in 1897 o grant a witness appearing before the Juge ¿’Instruction the right to ¡ounsel. M. Constans, one of the sponsors of the law in the French Senate, said: “The JUGE DTNSTRUCTION is like other functionaries. He must je controlled. * * * The presence of the lawyer will of itself * * * prevent lim from doing anything but his duty.” Quoted in Ploscowe, supra, at 181. See also Esmein, History of Continental Criminal Procedure (1913); ECeedy, The Preliminary Investigation of Crime in France, 88 U. Pa. L. Etev. 692.

      . A leading Italian jurist recently said:
      “The right to counsel, without which the right to defend oneself is of no practical meaning, does not exist during the first phase of the criminal process in those systems in which the pre-trial phase is carried out i: secret without the presence of defense counsel. This is the phase in whic the accused, alone and undefended before the examining magistrate, may b unable to find in his own innocence sufficient strength to resist the effects o: prolonged questioning, and in order to put an end to his ordeal may be reduced to signing a confession to a crime he has not committed. Unfortunately, Italian criminal procedure retains this said inheritance iron an era of tyranny, which is unreconcilable with respect for the human personality. * * *
      “In criminal procedure as we see it applied, the accused is still at inert object at the mercy of the inquisitor’s violence * * * Held incommunicado during the period of questioning, the accused is alone with his examiners, without aid of counsel; torture, although formally abolished, has returned with new guises more scientific but nonetheless cruel; the thirc degree, endless hours of incessant questioning, truth serum.” Calamandrei Procedure and Democracy (Adams transí. 1956) 93-94, 102-103.


author: By NICHOLS, J. By PHILLIPS, J. 3y GRIFFITH, J.

text:
    WAGNER et, Plaintiffs-Appellees, v. YOUNGSTOWN (City), Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3819.
    Decided April 5, 1956.
    William A. Ambrose, Pros., H. H. Hull, Asst. Pros., Youngstown, for plaintiffs-appellees.
    Felix S. Mika, Director of Law, Frank J. Battisti, Joseph L. Heffer-nan, Asst. Directors of Law, Youngstown, for defendant-appellant.
   OPINION

By NICHOLS, J.

The City of Youngstown appealed to this court on questions of law from a judgment of the Common Pleas Court of Mahoning County entered for the Commissioners of Mahoning County in a declaratory judgment action brought by the Commissioners to determine whether Mahoning County or the City of Youngstown should pay for the cost of relocating and reestablishing water lines necessitated by widening Ohio State Route 18 by the State Highway Department in Austintown, Mahoning County, Ohio, outside the corporate limits of defendant city.

On November 1, 1952, the parties entered into a written contract by the terms of which the City of Youngstown agreed to furnish water to County Sewer District Number 13 by means of mains and other facilities owned by the county of Mahoning.

The law provides that when county commissioners determine to establish a sewer district within the county the commissioners must provide the water supply necessary to operate the sewer system. Ma-honing County had no such water supply of its own. The City of Youngstown, at tremendous expense to the taxpayers of the city, had constructed, owns, maintains and operates its own water system The taxpayers residing in Sewer District Number 13 located outside the City of Youngstown paid nothing toward the construction, maintenance or operation of Youngstown’s water supply system. Hence the contract in question was entered into between the county and the city, this contract provided that the residents of the sewer district would be required to pay 25% more for water used by them and 10% more for servicM than would be charged and paid therefor by residents of the city. II

When the Highway Department reiocated Ohio State Route 18 thH water line theretofore constructed by Mahoning County was removeH a distance of sixteen feet from its original location and twenty-fivH hydrants and 196 curb boxes and shut-off valves which had been proB vided by the county at the time of constructing its water line werH required to be moved and relocated, necessitating the construction oH six hundred feet of new and additional water lines. I

The question arose between the parties as to who should bear thl expense made necessary in relocating and constructing the ne\ water line and relocating and reconnecting the necessar; fire hydrants, curb boxes and shut-off valves. Whereupon the partie agreed that the city, which owned equipment necessary to do the work would do the work and furnish the materials required so as to provid the sewer district with water, and it was agreed between the parties tha the county commissioners would bring this declaratory judgment actioi to determine the obligations of the respective parties under their contract theretofore entered into.

The contract provided, among other things, that the county shoulc construct and maintain the water lines, including facilities, at its owr expense for the period of one year and the city agreed that at the expiration of the period of one year it would “maintain and service al its own expense the same in good working order,” and would -permit the construction by the county of new water lines and connections witl existing lines. The contract provided further that the City of Youngstown “shall have no obligation to construct or to assume the cost oi construction of any new water lines” or facilities within the district

The cost of the new construction made necessary by the relocation oi the county’s mains may approximate $60,000.00. There is no claim that the water line or facilities were in need of repair or inadequate to serve the needs of the sewer district at any time before removal and relocation became necessary, hence no part of the cost of removal and relocation of the same would have fallen upon the city.

It is clear that the water lines located within the sewer district were constructed and owned by Mahoning County, and will belong to the county whenever the contract may be terminated. It was the same lines and facilities then owned and constructed by the county that the city agreed to maintain and service. It did not agree to maintain or service any new line which might be required during the period of the contract, and this is made clear by the fact that the contract provides that the city shall have no obligation to construct or to. assume the costs of construction of any new water lines or facilities within the sewer district.

The city agreed to furnish only surplus water not required by the city for its own purposes. Hence its obligation would end when the necessities of the city demanded, and in any event at the expiration of twenty years from the date of the contract.

It seems unreasonable to infer from this contract that the city in addition to the millions of dollars spent for establishing their own water supply ever intended to assume the obligation of paying for the new ater lines outside the city limits, necessitated by the relocating of tate Route 18, when no additional income would result to the city.

All the city obligated itself to do under the contract was to maintain, íat is keep in repair, the county’s mains and facilities as they existed t the time of the contract.

The plaintiffs contend that the word “maintain” as used in the ontract is broad enough to include all the expenses involved in remov-lg and relocating the water line and facilities owned by the county.

The trial court held that the city having in paragraph five of the ontract agreed to maintain and service at its own expense- the line and acilities in the sewer district in the same manner as the pipe system is aaintained and serviced within the city of Youngstown, that this clause /as broad enough to include the expense involved in the relocation and econstruction of the water lines and facilities required by the widening if the highway.

We find such interpretation fails to take into consideration the speciic clause in the contract providing that the city of Youngstown shall lave no obligation to construct or assume any portion of the cost of ¡onstruction of any new water lines or facilities within the district, as showing that the obligation of the city was limited to the water lines and 'acilities as they were located and existed at the time of the contract.

It is provided by paragraph six of the contract that the city will ‘permit connections to all existing water lines and permit the construc-;ion of new water lines and connections thereto within said district in accordance with the established regulations of the City of Youngstown— Division of Water.”

Certainly the contract relates to the existing water lines owned by the county and by using the language whereby permission was granted to the county to construct new water lines and connections it seems definitely to have been contemplated that any major changes made were required to be made at the expense of the county and not of the city.

We find the judgment of the trial court is contrary to law and must be and is reversed and final judgment entered for the defendant, City of Youngstown.

PHILLIPS, PJ, concurs in judgment.

GRIFFITH, J, dissents.

CONCURRING OPINION

By PHILLIPS, J.

Defendant, City of Youngstown, appealed to this court on questions of law from a judgment of the trial court entered for plaintiffs, County Commissioners, in an action for a declaratory judgment brought by them to determine whether plaintiff Mahoning County or defendant City of Youngstown should pay for the cost of relocating water lines sixteen feet from their original location at a cost upwards of $60,000.00 necessitated by widening Ohio State Route 18 by the State Highway Department in Austintown Township, Mahoning County, Ohio, outside the corporate limits of the defendant city.

The defendant city had the facilities for doing the work in questicH immediately available and in the interest of avoiding delay in widenirH Route 18, in conveniencing the residents of Sewer District No. 13, and iH consideration of plaintiff county commencing the declaratory judgmerH action in the court of common pleas which we review agreed with plairfl tiff county to do and did do the work in question. H

Twenty Are hydrants and one hundred ninety six curb boxes anH shut-off valves installed by plaintiff county servicing abutting dwelling® were necessarily removed and relocated in West Austintown Sewer Disfl trict 13 and six hundred feet of new and additional water mains or line® necessitated by such widening were laid by defendant city. B

On November 1, 1952, the parties entered into a written contract b the terms of which the defendant city agreed to furnish surplus water t Sewer District 13 by means of mains and other facilities owned by plain tiff county.

The contract provided, among other things, that the county shoul< construct and maintain the water lines, including facilities, at its owi expense for a year, which it did; that at the expiration of the perioc of one year the defendant city was obligated “to maintain and servici at its own expense the same in good working order”; and to permit th< construction by the county of new water lines and connections witl existing lines. The contract provided further that the defendant citj “shall have no obligation to construct or to assume the cost of construction of any new water lines” or facilities within the district.

The users of the water in question are charged twenty-ñve per cení more for the water used than Youngstown city water users are chargee and a service charge of ten per cent not charged city water users.

The plaintiff county contends that the word “maintenance” as used in the contract is broad enough to include such expense and justify the judgment of the trial judge.

The defendant city contends that the expense of the relocation here involved did not result from “maintenance” in the sense of keeping in repair, for which it committed itself.

In my opinion the work performed by the defendant city of Youngstown in relaying at a new location the water line which had formerly been constructed by the plaintiff county, still owned by it, and still in a good and serviceable condition, was not a part of maintenance but was work done in the construction of a new line at a new location, which the defendant city was not required to do under its contract as clearly shown by the provision expressly providing that the city “shall have no oblir action to construct or to assume the cost of construction of any new wa«r lines.”

For the reasons stated I believe the judgment of the trial court is contrary to law and must be and is reversed hereby, and that final judgment must be and is hereby rendered for the defendant City of Youngstown.

NICHOLS, J, concurs in judgment.

GRIFFITH, PJ, dissents.

DISSENTING OPINION

3y GRIFFITH, J.

My judgment in this case is in accord with that of the Trial Court ipon the reasoning set forth in its opinion and with the further added )bservations.

When the contract in question was entered into on November 1, 1952, )oth parties thereto were well aware that their rights thereunder were subordinate to the right of the State Highway Department to widen Route No. 18 as the public interest may require. Neither party contemplated this widening project, and the exigency resulting therefrom.

The water main and connections were installed by the county, and the abutting property owners assessed according to benefits. The city has been supplying water to this system since 1941, and the new contract was entered into in November 1952.

Nothing in the contract requires the county to do anything to the main or connections after the taking over by the city. It does require the city to maintain and service. The contract provides:—

“Anything that is not in first-class condition shall be repaired, by Mahoning County, at its own expense, and again inspected and approved by the Commissioner of Water, after which the City of Youngstown— Division of Water agrees to maintain the same at its own expense.”

It further provides:—

“The city shall continue to maintain and service, at its own expense, the piping system and all water lines, the maintenance of which has previously been assumed by the City of Youngstown in the same manner as the piping system is maintained and serviced within the City of Youngstown.
“It is further mutually agreed that the City of Youngstown shall have no obligation to construct or assume any portion of the costs of construction of any new water lines, feeder mains, hydrants or other facilities within said district.”

Does the term “maintenance,” imply the removal and relocation of twenty hydrants to the opposite side of the water main as well as the relocation of 196 curb boxes and shut off valves?

“Maintain,” has been defined in 38 Corpus Juris, on page 334, as follows:—
“As its structure suggests, ‘maintain’ signifies literally, to hold by the hand, While it is a word of common use and said to have a well defined meaning, oftentimes its meaning depends upon the intention of the parties and the contest of the instrument. It is variously defined as to bear the expense of; to continue; to furnish means for the subsistence or existence of; to hold in an existing state or condition; to hold or preserve in any particular state or condition; to keep from change; to keep from falling, declining, or ceasing, to keep in existence or continuance; to keep in proper condition; to keep in repair; to keep up, to preserve; to preserve from lapse, decline, failure, or cessation: to provide for; to supply with means of support; to supply with what is needed; to support; to sustain; to uphold. Negatively stated, it is defined as not to lose or surrender; not to suffer or fail or decline.”

The word “maintain,” as used in this contract, means continuing the water service already in existence and not as creating or bringing into existence a new service.

The construction work embraced in this case did not involve a complete rebuilding or reconstruction of the water line and connections or Route No. 18. There is a duty on the part of the City to maintain anc service the water lines at its own expense after the city inspects tht same and sees that they are in first class condition.

I have no difficulty in arriving at the conclusion that the language used in the contract is sufficiently broad as to include what is tantamount to relaying and reinstalling the connections, hydrants, and curb boxes if the same became necessary.

For the reasons set forth in the Trial Court’s opinion and these added! reasons, the declaratory judgment of the Trial Court should be affirmed!


author: 3y KLOEB, District Judge.

text:
    REID v. APPLETON-CENTURY-CROFTS, INC.
    United States District Court, N. D. Ohio, W. D.
    Civ. No. 6817.
    Decided May 20, 1953.
    Harris & Sell, Edward Harris, Toledo, for plaintiff.
    Marshall, Melhorn, Bloch & Belt, Toledo, for defendant.
   OPINION

3y KLOEB, District Judge.

This matter comes before the court on the motion of the plaintiff for m order striking from the answer the following words and allegations:

Specification 1. Sixth defense appearing as paragraph No. 36 on page six of the answer:

“36. Defendant states that any claim alleged in plaintiff’s complaint herein which accrued prior to June 18, 1951, is barred by §11225 GC.”

Specification 2. Seventh defense appearing as paragraph No. 37 on page six of the answer:

“37. Defendant states that any claim alleged in plaintiff’s complaint herein which accrued prior to June 18, 1946, is barred by §11222 GC.”

The complaint in this case is filed under authority of the Robinson-Patman Act, 15 U. S. C. A. §13 et seq., which imposes both civil and criminal sanctions for violation, the civil liability to the person aggrieved being one for treble damages. Section 4 of the Clayton Act, 15 U. S. C. A. §15, applies to the remedy, and provides:

“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

No reference being made in the statute as to the period of limitations for bringing such actions, it is conceded that reference must be had to the law of the forum to determine this question.

In an opinion filed by this court December 30, 1952, in the case of Reid v. Doubleday & Co., D. C., 109 F. Supp., 354, we held that the cause of action here sued upon is remedial rather than penal, and that §11222 GC, governs, rather than §11225 GC. Sec. 11222 GC, provides a time limitation of six years and §11225 GC, provides a time limitation of one year.

On the basis of the opinion filed December 30, 1952, we sustain the motion to strike from the answer paragraph 36 of the sixth defense. Defendant’s rights upon appeal are preserved.

With respect to specification No. 2 of the motion, it is plaintiff’s position that he has a right of recovery for acts of the defendant beyond the six years provided by §11222 GC, i. e., prior to June 18, 1946, because the running of all statutes of limitation on antitrust causes was tolled or suspended since October 10, 1942 by virtue of 56 Statutes at Large 781 and 59 Statutes at Large 306.

56 Statutes at Large 781 reads as follows:

“The running of any existing statute of limitations applicable to violations of the antitrust laws of the United States, now indictable or subject to civil proceedings under any existing statutes, shall be suspended until June 30, 1945, or until such earlier time as the Congre, by concurrent resolution, or the President, may designate. This act sha apply to acts, offenses, or transactions where the existing statute ( limitations has not yet fully run, but it shall not apply to acts, offensei or transactions which are already barred by the provisions of existing laws.”

The above statute was amended in 59 Statutes at Large 306, on Jun 30, 1945, to extend 56 Statutes at Large 781 for a period of one additions year.

It is defendant’s position that the quoted statute has no applicatio: to the present case and that the six year statute of limitations, §11232 GC was not tolled; that the statute provides that the running of the statut of limitations shall be suspended only in the case of violations of anti trust laws “now indictable or subject to civil proceedings”; and that th legislative history shows that the term “civil proceedings” should b construed as limited to civil proceedings instituted by the United States and does not include treble damage suits instituted by private parties

We are of the opinion that the motion for an order striking paral graph 37 of the seventh defense from the answer ought to be sustained» United West Coast Theatres Corporation v. South Side Theatres, Inc (Twentieth Century-Fox Film Corporation, Third-Party Defendants) D. C., 86 P. Supp., 109; Ex parte Collett, 337 U. S., 55, 69 S. Ct., 944, 959 93 L. Ed., 1207.

The opinion of District Judge Mathes in the United West Coasl Theatres Corporation case appears to be the result of intensive study anc research on the very question involved herein. On page 113 of 86 P Supp. we find the following:

“Manifestly, to toll ‘any existing statute of limitations applicable tc * * * civil proceedings’ brought by the United States, while permitting limitations to run against private persons, would tend to defeat the very encouragement and assistance to private litigants which the congress sought to give by §5 of the Clayton Act.”

In Ex parte Collett, an opinion by Mr. Chief Justice Vinson, decided May 31, 1949, just two months before the opinion of Judge Mathes was filed, we find, 337 U. S. at page 58, 69 S. Ct. at page 946, the following:

“First. The court below relied on the language of §1404(a), supra, which it regarded as ‘unambiguous, direct, clear.’ We agree. The reach of ‘any civil action’ is unmistakable. The phrase is used without qualification, without hint that some should be excluded.. From the statutory text alone, it is impossible to read the section as exercising this case from ‘any civil action.’ ”

On page 61 of 337 U. S., on page 947 of 69 S. Ct., we find the following:

“Third. Petitioner’s chief argument proceeds not from one side or the other of the literal boundaries of §1404(a), but from its legislative history. The short answer is that there is no need to refer to the legislative history where the statutory language is clear. ‘The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every irection.’ Gemsco v. Walling (1945), 324 U. S., 244, 260, 65 S. Ct., 605. 14, 89 L. Ed., 921.”

The language of 56 Statutes at Large 781 appears to be “unam-iguous, direct, clear,” and we are of the opinion that the plain words nd meaning of the statute are not overcome by the legislative history elied upon by defendant and contained chiefly in Senate Report No. 592 of the Seventy-seventh Congress, Second Session, and Senate Report To. 422 of the Seventy-ninth Congress, First Sessions. These are the eports that accompanied S 2731 and S 937 which became 56 Statutes it Large 781 and 59 Statutes at Large 306.

The motion of plaintiff for an order striking from the answer speci-ications one and two is, therefore, sustained.

An order is drawn accordingly.