ARBITRARY SEARCHES AND SEIZURES families or for less than twenty-five per sons. This power does not seem to have been affirmed or denied by judicial decision, but on principle it would seem that admin istrative officers cannot be vested with, gen eral powers to enter private premises at any time, except to abate actually existing public nuisances, and that every such inspection against the will of the owner should be based on judicial authority complying with the constitutional requirements with regard to searches. The English law requires in case of refusal of admission an order of a justice after reasonable notice of the person having custody of the houses to be inspected. Massachusetts likewise in such cases re quires a warrant but does not provide for notice, but the English act gives a general power of entry in cases of epidemic disease."1 Professor Freund, however, leaves unan swered, not merely the question of the fac tory and the workshop and the store, but of the home factory, or workshop. What, for instance, it may be asked, would be the law in the case of the home finisher, of the garment worker, of the sweatshop? For in the state of New York, at any rate, the case of In re Jacobs 3 has made it practically impossible to abolish the home sweatshop. Does the fact that the manufacturing is done in the home preclude the right of in spection except by search warrant, and surrounded by all the safeguards provided by the constitution in the case of search warrants, and is the unlicensed factory a private premise. Is the factory a castle as well as the home? Does it come within the concept of Lord Chatham when he elo quently remarked that, "The poorest man rnav in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, the storm may enter, but the King of England may not enter, all his force dares not cross the threshold of the ruined tene ment." 1 Freund Police Power, 42, 43.
- 98 N. Y. 98.
There are few, if any, adjudicated cases upon the subject. The only one which the writer has been able to discover is the Michi gan case of People v. Dow.1 In it the larger and fundamental question as to whether the right of inspection could be insisted upon at all was not raised. The only question pre sented or discussed was, "Whether the factory inspector or his deputy has the right at all reasonable times to enter at any door or entrance that is open and through which access may be gained to the machin ery in any factory, that the duties of the inspector or his deputy, as set forth in the statute under which the warrant in this case is issued, may call him, or whether the fac tory inspector or his deputy be compelled to enter such factory through such opening or door as the proprietor or person in charge may see fit to designate."* "We have," the court in its opinion says, "no hesitancy in answering this question, and affirming that it is the duty of the factory inspector to observe the reasonable regula tions of the proprietor. The authority conferred by this statute is extraordinary and the regard to the rights of others would suggest to the officers that the authority be exercised in such a way as to avoid collision with the owner or occupant if possible." "The case would have been quite differ ent if the refusal had been captious, or if the door through which the inspector had been directed would not have afforded him full access to all parts of the factory which he desired to inspect. The provisions of the law are wise and salutory and we would by no means be disposed to place such a construction on the statute as would be calculated to unnecessarily hamper officers in the discharge of their duty; but on the other hand, the power to enter upon private premises for the purpose of inspecting prop erty is a delicate power and should be ex ercised with great caution. We think the 1 76 N. W. 89 (Mich.).
- See opinion in People v. Dow, supra.
