Board of Review v. Williams

• Decision Date: 27 September 1943
• Docket Number: 35356.
• Citation: 195 Miss. 618,15 So.2d 48
• Court: Mississippi Supreme Court
• Parties: BOARD OF REVIEW et al. v. WILLIAMS.

15 So.2d 48

195 Miss. 618

BOARD OF REVIEW et al. v. WILLIAMS.

No. 35356.

Supreme Court of Mississippi

September 27, 1943

Greek L. Rice, Atty. Gen., and Harry M. Bryan and Henry Edmonds both of Jackson, for appellants.

Hathorn & Williams, of Poplarville, for appellee.

ROBERDS Justice.

Appellants are the Mississippi Unemployment Compensation Commission and the Board of Review thereof. They will be called the Commission and the Board in this opinion.

The Board, by written petition herein, prayed for a decree of the Chancery Court (1) requiring G. H. Williams to produce before the Board at a hearing to be held at Picayune, Mississippi the stock books and pay rolls of Williams Contracting Company, a corporation, showing the stockholders and employees of that corporation for the years 1937, 1938 and 1939, for inspection and evidence, if desired, in connection with a claim for compensation made by one Buford J. Dillard or, in the alternative, (2) requiring Williams to appear before that court and show cause why he should not produce said books and rolls. Williams was summoned to show cause. He answered. The Chancellor held that he was not required to produce such books and rolls.

There were a number of intermediate pleas, but the cause was finally heard upon the original and amended petitions and answer thereto. No proof was taken.

The original petition recited that the Unemployment Compensation Law exists by virtue of Chapter 176, Laws 1936; Chapter 3 First Extraordinary Session of 1936; Chapter 147, Laws of 1938 and Chapter 295, Laws of 1940 of Mississippi, and that the Commission and the Board are charged with the administration thereof, including claims of persons for unemployment compensation and including hearings and appeals to the Board from decisions of the Referee; that the Commission and the Board have the power to administer oaths to witnesses, Section 11(j), and issue subpoenas for witnesses, Section 11(k), said Chapter 295 (Section 11(j) and (k), Chapter 147) and that Section 11 (k) confers the right on the Commission and Board to petition the Chancery Court for remedial orders and decrees to aid them in performing their duties and carrying out their powers, and that in this case the Board seeks such aid. The petition then sets out: "That at nine o'clock A.M. on June 17, 1940, the aforesaid Board of Review, duly and lawfully constituted and acting wholly within the scope of its statutory authority, held a hearing in the office of the Mississippi State Employment Service in the City of Picayune, Pearl River County, Mississippi, in the matter of an appeal by Buford J. Dillard from a decision of E. S. McIntyre, Appeals Referee, in a pending appealed claim for benefits under said law, the said Appeals Referee having held adversely to the said Dillard with respect to certain wages claimed by said Dillard to have been earned by him in 1938 in the employ of G. H. Williams, then and now a resident citizen of Pearl River County, Mississippi."

The petition further states that Williams, in response to subpoena issued by the Board, appeared and testified at that hearing, and that during his examination he was requested to produce the above stock books and pay rolls but declined to do so; whereupon the Board issued a subpoena duces tecum to him to bring these before the Board for examination and use in the hearing, which he refused to do. The petition then prayed in the alternative as above set out.

The amended petition was, in all essential respects, the same as the original petition, except that following the above-quoted provision in the original, the amended petition added this phrase: "Said claimant having stated that he was uncertain as to who his employer was because of an alleged close connection between the said G. H. Williams, individually, and the G. H. Williams Contracting Company, a corporation, of which the said G. H. Williams is president."

Williams, in his answer to the petitions, admitted Dillard had presented a claim as stated in the petitions, and that same had been denied by the Referee, and Dillard had appealed, and that Williams had declined to produce the books and rolls, and denied that Dillard "stated that he was uncertain as to who his employer was because of an alleged close connection between G. H. Williams, individually, and the Williams Contracting Company, a corporation"; admitted Dillard was an employee of Williams individually in the year 1938, and denied he was ever an employee of Williams Contracting Company. It asserted that Dillard was employed by Williams individually as a farm laborer and that farm laborers are expressly excluded from participating in the compensation fund, and that said stock books and payrolls were not pertinent or relevant or material to the issues then being considered by the Board.

Neither petition waived answer under oath. Williams' answer was sworn to by him on personal knowledge. The record contains neither the petition of Dillard nor the findings of the Referee denying his claim, nor the proof before the Referee. Passing upon that factual situation the Chancellor said: "I do not think the petition alleges sufficient facts to entitle petitioner to the relief sought in the petition, but should it be conceded that the petition alleges sufficient facts to entitle petitioner to the relief sought, all of these facts are denied by defendant under oath and no proof whatever was offered by petitioner to overcome the effect of the denials contained in the sworn answer." That conclusion cannot be controverted on this record. In other words, this record shows Dillard was an employee of Williams individually and was a farm laborer. The issue to be passed upon by the Board was whether Dillard was entitled to compensation as such employee. Farm laborers are not entitled to benefits under the Act. Section 19 (i) (5) (A) of said Chapter 147, and Section 19(i) (6) (A) of said Chapter 295. It is not seen how the stock books and pay rolls of Williams Contracting Company were pertinent or material to the issue being considered. As to the Contracting Company this appears to be an inquisitorial, or fishing, proceeding. Courts, in passing on such questions, cannot disregard the rights of third persons.

The law is well settled on the question. It is within the sound discretion of the court whether it will grant an order for the issuance of a subpoena duces tecum. Jones' Commentaries on Evidence, 2d Ed., Vol. 5, p. 4510, Sec. 2309; Dancel v. Good-year Shoe Mach. Co., C.C.Mass., 128 F. 753; Tucker v. Peiler, 2 Cir., 297 F. 570, certiorari denied 265 U.S. 587, 44 S.Ct. 461, 68 L.Ed. 1193.

The order will not issue unless the books and papers are pertinent, relevant and material to the issues then being tried, and the application or petition must show these facts. 70 C.J., p. 50, Sec. 37; Dorris v. Morrisdale Coal Co., 215 Pa. 638, 64 A. 855; People v. Heintz, 167 Ill.App. 550; Dancel v. Goodyear Shoe Mach. Co., supra; Tucker v. Peiler, supra; 70 C.J. p. 52, Sec. 39; Stevens v. Locke, 156 Miss. 182, 125 So. 529, 533.

In 70 C.J. p. 52, Sec. 39, it is said that it must appear from the application that the books or papers of which production is asked are "relevant and material to the issues before the court".

In People v. Heintz, supra, it was said: "There is an entire absence of any showing in the record that the books, documents and papers designated in the subpoenas duces tecum, were in any wise pertinent or material to the issues involved in the proceedings supplemental to judgment. In the absence of such showing, a party failing to obey a subpoena duces tecum cannot be adjudged in contempt and punished therefor."

In Stevens v. Locke, supra, this court said "the relevancy of evidence should be made to appear in the petition or proof before it would be reversible error to refuse to issue the writ."

In Mississippi Chancery Practice by Griffith, Section 553, it is said: "The petition must state sufficient facts to show that the papers and books sought are material as evidence in the case and for what purpose and in what respect they are material so that the chancellor may protect the witness against an unnecessary or irrelevant production."

The courts have frequently said, "The writ will not be granted as a fishing expedition nor where the purpose is for more inquiry or to discover whether there is any evidence in them that will be useful to the applicant, or for a general inquisitorial examination." 70 C.J. p. 51, Sec. 37; Dorris v. Morrisdale Coal Co., supra; Jones' Commentaries on Evidence, supra, p. 4506, par. 2307.

It will be noted that this is not a proceeding by the Commission or the Board against Williams Contracting Company to determine whether that Company is an employer covered by the Act, nor whether, if it is such an employer, it has failed to make contributions as required by the Act, nor is it alleged that Williams owns or controls the Contracting Company, or that either Williams or the Contracting Company is within the Act. The Contracting Company is not a party to this proceeding for any purpose.

It appears to be the contention of the Board and Commission that, under said subdivisions (j) and (k), they have the exclusive power to issue writs of duces tecum and that the only function of the court is to force production if the Board and Commission determine such production should be had that the machinery of the court is merely ministerial in carrying out their wishes, and the court has no discretion in the matter. Aside from whether the Legislature would have the power to thus wipe out the constitutional right of persons against unlawful search and seizure, sacred under our form of government, the statutes invoked do not support the contention. Unde...