In re Pacific Telephone & Telegraph Co.

• Decision Date: 04 March 1930
• Docket Number: No. 21507.,21507.
• Parties: In re PACIFIC TELEPHONE & TELEGRAPH CO. et al.
• Court: U.S. District Court — Northern District of California

38 F.2d 833 (1930)

In re PACIFIC TELEPHONE & TELEGRAPH CO. et al.

No. 21507.

District Court, N. D. California, S. D.

March 4, 1930.

George J. Hatfield, U. S. Atty., and I. M. Peckham, Asst. U. S. Atty., both of San Francisco, Cal.

Pillsbury, Madison & Sutro, of San Francisco, Cal., for respondents.

KERRIGAN, District Judge.

An order to show cause has issued, directed to the respondent E. T. O'Donnell to show cause why he should not be ordered to produce certain books and records of the Pacific Telephone & Telegraph Company, and be sworn and testify on an application for a search warrant made by the United States attorney to one of the United States commissioners for this district, and why he should not be held in contempt for disobedience of a subpœna issued by the commissioner.

The commissioner's certificate, upon which the order to show cause is based, states that application for a search warrant was made to him, supported by the affidavits of three persons. These affidavits were not made part of the record herein, to avoid a possible public disclosure of the facts therein stated. Copies have, however, been furnished to the court. It is sufficient for the purposes of this proceeding to state that these affidavits charge the commission of a felony, conspiracy to violate the National Prohibition Act (27 US CA). They recite facts tending to show that certain persons were selling liquor for which they took telephone orders. The telephone numbers are given. The location of the telephones is not stated. The premises sought to be searched are those where these telephones are installed. It appears that these telephones are not listed in the general telephone directory, and that respondent refused on inquiry from one of affiants to state the names and addresses of the subscribers. The commissioner issued a subpœna directed to respondent, requiring him to appear and bring with him the original applications for the telephones bearing the stated numbers, and the records showing the names of the subscribers and location of the telephones, and to testify thereto. At the time and place designated, counsel appeared on behalf of respondent, and stated his refusal to obey the subpœna.

The Espionage Act of 1917 provides, in sections 1 and 4 (40 Stats. at L. 228, 18 US CA §§ 611, 614), as follows:

"Section 611. A search warrant authorized by this chapter may be issued by a judge of a United States district court, or by a judge of a State or Territorial court of record, or by a United States commissioner for the district wherein the property sought is located."

"§ 614. The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them."

If a United States commissioner has power to issue a subpœna for a witness whose testimony is desired to establish probable cause for the issuance of a search warrant, that power must be found implicit in the section above quoted, with reference to the examination on oath of "the complainant and any witness he may produce." There is no statute expressly conferring power to issue a subpœna upon an United States commissioner.

In proceedings following an arrest and the filing of a complaint, the power of a United States commissioner to subpœna witnesses has been implied from the provision of Rev. St. § 1014 (18 USCA § 591) that a United States commissioner may arrest, imprison, or bail an offender "agreeably to the usual mode of process against offenders in such State." Where the committing magistrates of the state may subpœna witnesses for the purposes of preliminary hearings, it has been held that, under this section, the United States commissioner also has this power. U. S. v. Beavers (D. C.) 125 F. 778; U. S. v. Stern (D. C.) 177 F. 479. And it may be that in states where, by express statute or judicial interpretation of statute, the committing magistrate is empowered to subpœna witnesses to testify to facts necessary to establish probable cause for arrest prior to the issuance of a warrant, and to supplement the allegations of a complaint or information insufficient for this purpose in itself, the United States commissioners for those districts have the same power. See People v. John J. Hicks, 15 Barb. (N. Y.) 153; State ex rel. Long v. Keyes, 75 Wis. 288, 44 N. W. 13; State v. Baltes, 183 Wis. 545, 198 N. W. 282. In California, however, and in this district, the power of the United States commissioner is no greater than that of the committing magistrates of this state. Such magistrates may subpœna witnesses only after arrest of the offender and complaint filed. Cal. Penal Code, § 864; and see U. S. v. Collins (D. C.) 79 F. 65, 68.

I have discussed the power of the commissioner to subpœna witnesses under Rev. St. § 1014 (18 USCA § 591), in this detail, because it is argued with insistence in support of the power of the commissioner in the instant case that a close analogy exists between the arrest of an offender and the "arrest of goods" under a search warrant. When the question at hand concerns statutory power, analogy between different statutes is of doubtful value as an aid to construction, but, even assuming the comparison here to be valid, which I do not believe it to be, it must appear from what has been said that, if the commissioner cannot subpœna witnesses to supplement a complaint which does not allege facts sufficient to establish probable cause for arrest, neither can he do so to supplement deficiencies in the affidavits or other testimony offered by the applicant for a search warrant.

Early New York and Wisconsin cases have construed the language of statutes relating to preliminary investigation of complaints upon which a warrant of arrest is to be based, directing the examination of "complainant and any witness he may produce" as authorizing the subpœnaing of witnesses for that purpose. People v. John J. Hicks, 15 Barb. (N. Y.) 153; State ex rel. Long v. Keyes, 75 Wis. 288, 44 N. W. 13. The phraseology of the New York Code (section 794, Code of Criminal Procedure) is said to have formed the model for the similar section (18 USCA § 614) of the Espionage Act relating to the examination of applicants for a search warrant, and I am urged to hold that this phrase must be similarly interpreted here. The mere use of the same language in the Espionage Act is not, however, sufficient to warrant a transfer of construction from a statute enacted by another jurisdiction for a different purpose, applicable to a different subject-matter, and construed by the state courts with reference to the structure of their own judicial system.

It is further argued that the fact that a United States commissioner, in passing upon the question of probable cause sufficient to support the application for a search warrant, is acting judicially is a sufficient basis for implying power to subpœna witnesses in aid of the judicial function. The mere exercise of judicial power does not invest a functionary with the aids to jurisdiction peculiar to court...