Bowles v. Misle

• Decision Date: 09 March 1946
• Docket Number: Civil Action No. 490.
• Citation: 64 F. Supp. 835
• Parties: BOWLES, Price Administrator, v. MISLE.
• Court: U.S. District Court — District of Nebraska

64 F. Supp. 835

BOWLES, Price Administrator, v. MISLE.

Civil Action No. 490.

District Court D. Nebraska, Lincoln Division.

March 9, 1946.

Edwin F. Moran, of Nebraska City, Neb., W. S. Wingerd, of Omaha, Neb., and Allen Wilson, of Lincoln, Neb., for plaintiff.

Robert VanPelt, of Lincoln, Neb., and Thomas J. Dredla, of Crete, Neb., for defendant.

DELEHANT, District Judge.

The plaintiff's complaint charges the defendant, as the owner and operator of an automobile repair business, with the demand for, and receipt of, prices for the services of his business in excess of those allowable under Revised Maximum Price Regulation No. 165, as amended (9 F.R. 7439), promulgated in pursuance of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix §§ 901-971, and with certain acts of omission violative of the regulation. It prays for injunctive relief and for judgment for an appropriate sum of money based on the alleged overcharges, within the contemplation of 50 U.S.C.A.Appendix § 925(e).

With a view to procuring and presenting proof of the alleged violations and the extent thereof, the plaintiff has filed a motion requesting an order, under Rule 34 of the Federal Rules of Civil Procedure, 28 U.S. C.A., following section 723c, requiring the defendant to produce, make available and permit the inspection and copying of, the records, books and accounts of the defendant relevant to the issue, including specifically, (a) sales invoices showing services and prices during the year 1945 (which does not exactly correspond to the period of violation specified in the complaint); (b) sales records showing the highest prices charged for like services during March 1942, with substantiating invoices; (c) prepared copy or copies of the filing statement required by the regulation mentioned; and (d) copies of flat rate manuals used by the defendant in determining hourly time for services performed and charged to customers. The records and papers sought are unquestionably such as the statute and the regulation require to be kept and exhibited as an imperative incident to the regulatory and administrative service.

Resisting the motion, the defendant has filed a written claim of privilege in which he asserts that, by virtue of 50 U.S.C.A.Appendix Section 922(g), he is entitled to the immunities provided by the compulsory Testimony Act of February 11, 1893, 49 U.S. C.A. § 46; and also that the granting of the motion would be violative of his rights severally guaranteed under the fourth and fifth amendments to the constitution of the United States. The court does not understand that the motion is otherwise assailed. The constitutional claim has been submitted upon oral argument and briefs; and counsel are entitled to an orderly statement of the court's ruling, and of some, at least, of the considerations that prompt it.

The discovery and production which the motion asks are sought entirely under Rule 34, in the course of the prosecution of a civil action pending in this court. The controversy does not involve any demand for an order of the court directing the observance of the requirements of an administrative order or subpoena within the grant of jurisdiction made in 50 U.S.C.A.Appendix § 922(e). It is true that, in his motion, the plaintiff refers to 50 U.S.C.A.Appendix § 922(b); but the court considers that citation to be merely a reminder to the court of the statute's provision touching the maintenance and availability of such records and the administrator's right to their scrutiny. Thus regarded, though its pleading is not technically necessary, it serves to disclose the materiality and presumed custody of the papers at which the motion is aimed.

Protection is claimed by the defendant under the fourth amendment of the constitution because of the language: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"; and under the fifth amendment, by reason of the sentence: "No person * * * shall be compelled in any Criminal Case to be a witness against himself."

The cited Compulsory Testimony Act of February 11, 1893, originally designed to facilitate the investigatory and regulatory service of the Interstate Commerce Commission, is rooted in the quoted amendment, especially the fifth. Its material language follows: "No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled, `An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding." (Italics added and text taken from 27 Stat. 443, 49 U.S.C.A. § 46.) 50 U.S. C.A.Appendix § 922(g), which is said to import the emphasized immunity into the Emergency Price Control Act of 1942, is in this language: "No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 * * * shall apply with respect to any individual who specifically claims such privilege."

The Compulsory Testimony Act will hardly be said to enlarge the immunities guaranteed by the fourth and fifth amendments to the constitution. On the contrary, within its limited area, it thwarts the strictly silencing consequence and documentary cloture otherwise consequent upon those amendments, while strictly preserving their protection from criminal prosecution in consequence of the revelation which it compels.

In a fair appraisal of the scope of 50 U.S.C.A.Appendix § 922(g) lately quoted, two quite narrow considerations seem to the court to suggest persuasively the rejection of the defendant's challenge, to the extent that it is based upon the incorporated immunity provisions of the Compulsory Testimony Act of February 11, 1893.

It will be observed, in the first place, that the incorporation by reference of the immunity provisions of the Act of February 11, 1893, is a corollary to the denial of excuse, by reason of the privilege against selfincrimination, from complying with any requirements under Section 922, of which it is a part. Now, those requirements include (a) the furnishing to the administrator of information, proper or necessary in the prescription of regulations or in the administration or enforcement of the Emergency Price Control Act; (b) the making and keeping of records and other documents and the making of reports; (c) the permission of the inspection and copying of records and other documents, and of the inspection of inventories or defense-area housing accommodations; (d) and the compliance with administrative subpoenas issued to require performance of the foregoing duties. Unlike the premising and underlying sentences already quoted from the Compulsory Testimony Act, the instant Act deals only with the administrative office, and does not even assume to intrude into or provide a rule of evidence in judicial proceedings, whether civil or criminal, pending in a regularly established court, in consequence of the violation of the act. If the present issue had arisen in a proceeding, brought under 50 App. U.S.C.A.Appendix § 922(e), to obtain an order requiring compliance with an administrative subpoena, the immunity accorded under subsection (g) of the same section would be directly involved; though, for reasons which will be set down later, it would not intercept the inquiry. But to this purely judicial action the immunity is simply inapplicable, in consequence of its own terms.

The second consideration fatal to the claim that the statutory immunity requires the denial of the plaintiff's motion arises from the nature of the prayer of the complaint. Even if the material sought by the motion were, in the circumstances of its procurement, inadmissible as evidence in support of the demand for a money judgment, it would not reasonably seem to be inadmissible upon the prayer for injunctive relief. Such relief can hardly be comprehended within the definition of "a penalty or forfeiture". And, being competent for any purpose the pursuit of the papers should not be denied. The limits, if any there be, upon their probative use should be set on the occasion of their presentation at the trial, or perhaps by a preliminary order in the light of the issue or issues ultimately to be tried.

But those reflections do not come to grips with the radical issue of the availability as testimony, of the material sought, in the face of the quoted prohibition of the fifth amendment. That is the vital question, however it be presented. For if the amendment warrants the defendant's objection to the motion, tendered as it is in a judicial proceeding, this court finds nothing in 50 U.S.C.A.Appendix § 922(g) which is adequate to nullify the silencing obstacle of the amendment and remit the defendant to the incorporated immunity of the earlier Compulsory Testimony Act. The asserted...