In re Storror

• Decision Date: 02 August 1894
• Docket Number: 11,092.
• Citation: 63 F. 564
• Court: U.S. District Court — Northern District of California
• Parties: In re STORROR.

63 F. 564

In re STORROR.

No. 11,092.

United States District Court, N.D. California.

August 2, 1894

W. S Wood, for the motion.

Charles A. Garter, U.S. Atty., opposed.

MORROW District Judge.

This is a motion to quash a subpoena duces tecum issued upon the petition of the United States attorney, directed to and served upon L. W. Storror, superintendent of the Postal Telegraph-Cable Company, requiring him to appear as a witness before the United States grand jury, and bring with him, and produce, certain telegraphic messages. It appears from the petition of the United States attorney that there is pending before the United States grand jury an investigation as to certain alleged violations of the laws of the United States relating to and prohibiting the obstruction and retarding the mails of the United States, and of the carriers carrying the same, and relating to and prohibiting conspiracies and combinations in restraint of trade and commerce between the several states and territories of the United States and foreign countries, and that the telegraphic messages relating to the matters under investigation are material and necessary evidence in said investigation and in the cases being investigated. The telegrams described in the petition indicate that they relate to the recent railroad strike which appears to have been directed by the president and executed by the members of the American Railway Union and others.

In support of the motion to quash this subpoena, it is objected that it was issued without authority of law; that it is too vague and uncertain, and fails to specify what telegrams are to be produced; that it fails, in numerous instances, to furnish the witness with either the date, address destination, or signature of the telegrams mentioned therein that it calls for the search by the witness for telegrams in numerous places in this state, far removed from each other, and no compensation has been tendered him for his outlay in making such search; that it calls for the search by the witness, and the production by him of all messages from a number of persons to many other persons, between certain specified dates, without pointing his attention to any particular message or messages; that it calls for the production by the witness of messages which are not shown to be relevant evidence in any matter now pending before the present grand jury; that it calls for the production of messages by the witness in violation of the provisions of section 619 of the Penal Code of the state of California; and, finally, that the subpoena does not conform to the order issuing the same.

The authority of the courts of the United States to issue subpoenas duces tecum appears to be derived from section 716 of the Revised Statutes of the United States, which provides that the supreme court and the circuit and district courts shall have power to issue 'all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. ' At common law every court having the power to hear and determine any suit had the inherent power to call for all adequate proofs of the facts in controversy, and to that end to summon and compel the attendance of witnesses, and if the witness was expected to produce any books or papers in his possession a clause to that effect was inserted in the writ, which was then termed a 'subpoena duces tecum.' 1 Greenl.Ev. § 309; 3 Bl.Comm. 382. The writ was of compulsory obligation. Amey v. Long, 9 East, 473. The controversy in this case is not, however, with respect to the power of the court to issue a subpoena duces tecum in a proper case, but it is contended that telegraphic communications are confidential, so far as the telegraph companies are concerned, and therefore, in their hands, such messages are in the nature of privileged communications, which it is the policy of the law to protect and keep inviolate. Judge Cooley, in his work on Constitutional Limitations, adds a note on page 327 (of the second edition), in which he takes this view. In the American Law Register for February, 1879, there is also an article by the same author entitled 'Inviolability of Telegraphic Communications,' in which the whole subject is ably discussed, and his conclusions summed up in favor of the privileged character of these communications, based upon the principles of law declared in Entinck v. Carrington, 19 State Tr. 1030, and Wilkes v. Wood, Id. 1154, and upon our own constitutional provisions for the protection of private papers and personal rights. But the courts have certainly not adopted this view of the law, and legislation has not been in that direction. It is to be observed that no claim is made here that these telegrams are to be used in evidence in any prosecutions against the telegraph company, or any of its officers. It is apparently conceded that the grand jury is investigating the conduct of the parties who sent or received the telegrams, and not the relation of the telegraph company to the alleged violations of law involved in the act of transmitting the telegrams between the parties. The case is not, therefore, within the liberal construction of the constitutional provisions in favor of defendants, as declared by the supreme court in Boyd v. U.S., 116 U.S. 616, 6 Sup.Ct. 524. There is no statute law of the United States making telegraphic messages, as such, privileged communications; and, if...