Serr v. Sullivan
| Citation | 270 F. Supp. 544 |
| Decision Date | 13 July 1967 |
| Docket Number | Misc. No. 3584-3590. |
| Parties | Harold A. SERR, Director Alcohol and Tobacco Tax Division, Internal Revenue Service, Petitioner, v. Juleus J. SULLIVAN, Jr., et al., Respondents. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
John R. Sutton, Asst. U. S. Atty., Philadelphia, Pa., Philip Willens, Dept. of Justice, Washington, D. C., Kenneth L. Travis, Asst. Regional Counsel, I.R.S., Cincinnati, Ohio, for petitioner.
H. Francis DeLone and Richard Schneider, Philadelphia, Pa., Russell E. Ellis, Philip H. Strubing, Philadelphia, Pa., for Hiram Walker, Norristown, Pa., for respondents.
This matter comes before the Court on the petition of the Director of the Alcohol and Tobacco Tax Division (hereafter called Director), Internal Revenue Service, which requested this Court to compel respondents to appear and testify before the Director (or his authorized designate) according to the terms of a subpoena duces tecum issued by the Director in the proceedings involving the special investigation of Hiram Walker Incorporated (hereafter called Hiram Walker). The petition was based on the Federal Alcohol Administration Act (hereafter called Act), 27 U.S.C.A. § 202 (c) which incorporates the subpoena provisions of the Federal Trade Commission Act, 15 U.S.C.A. § 49. An order was issued requiring respondents to show cause why the subpoena should not be enforced. After hearing argument and consideration of briefs submitted by the parties and by Hiram Walker (intervenor) we have concluded that the petition for the enforcement of the subpoenas must be denied.
The Director began an investigation of Hiram Walker, suspecting violations of the Act by unauthorized promotional practices which contravene the Act. 27 U.S.C.A. § 205. Subpoenas were issued to certain employees and former employees of Hiram Walker who might have information concerning the practices. The respondents appeared at the time and place noted in the subpoenas, but refused to be sworn or testify. The Director then petitioned this Court to enforce the subpoenas. 15 U.S. C.A. § 49.
The question is apparently novel and involves the power of the Director to launch a special investigation with the power to compel witnesses to appear and testify. 27 U.S.C.A. § 202(c) states:
"The provisions including penalties, of sections 49 and 50 of Title 15, shall be applicable to the jurisdiction, powers, and duties of the Director * * *."
This section incorporates that portion of the Federal Trade Commission Act which authorizes the Commission to issue subpoenas. Section 49 of Title 15 states, inter alia:
"* * * the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. * * *" emphasis added
It is to be noted, however, that this refers to investigations of the Federal Trade Commission.
The Director claims that the power to subpoena witnesses concerning any matter under investigation, implies the power to conduct an investigation. The respondents contend that the Director only has the subpoena power under 15 U.S.C.A. § 49 in aid of its "jurisdiction, powers and duties" under the Act 27 U.S.C.A. § 202(c). The respondents claim that the power to conduct an investigation must be authorized by the Federal Alcohol Administration Act or else it does not exist. There is no doubt that the Act does not specifically provide a power to conduct investigations, and in view of similar legislation, and the legislative history of the Act, we do not think such a power can be implied.
The Federal Trade Commission Act specifically provides for investigations. 15 U.S.C.A. § 46. The power to conduct investigations in section 46, is specifically incorporated in section 49 granting the subpoena power. Congress apparently did not feel that the language "relating to any matter under investigation" itself created such a power, but merely referred to powers previously granted. Four other statutes have been called to this Court's attention in which the subpoena powers of the Federal Trade Commission have been incorporated by reference to other agencies. In each of these statutes Congress specifically provided an investigative power. Packers and Stockyards Act, 7 U.S.C.A. §§ 210, 222; The Agricultural Adjustment Act, 7 U.S.C.A. §§ 608(1), 610(h); The Fair Labor Standards Act, 29 U.S.C.A. §§...
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Sealed Air Corp. v. US Intern. Trade Com'n
...can be challenged if it seeks to invoke compulsory process against persons over whom it has been given no such authority, Serr v. Sullivan, D.C., 270 F.Supp. 544, aff'd 390 F.2d 619 (CA 3 1968), or if it operates beyond the scope of its subject matter jurisdiction. Canadian Pacific Ltd. v. ......
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U.S. v. Hill
...10 supra ). See also General Tobacco & Grocery Co. v. Fleming, 125 F.2d 596, 598 (6th Cir.1942) (same as La Belle ); Serr v. Sullivan, 270 F.Supp. 544, 545 (E.D.Pa.1967) (not discussing jurisdiction, but indicating only that 27 U.S.C. Sec. 202(c) "incorporates that portion of the [FTC Act] ......
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Florida Medical Ass'n v. DEPARTMENT OF HEALTH, ETC.
...v. Serr, 277 F.Supp. 3 (E.D.Pa.1967), is a case that illustrates such equitable, injunctive, ancillary jurisdiction. In Serr v. Sullivan, 270 F.Supp. 544 (E.D.Pa.1967), the district court had held that, in the absence of a specific congressional, statutory grant of power to the Director of ......
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F. T. C. v. Turner
...reads the requirement of a statutory mandate too narrowly, and in conflict with the principles of Morton Salt. See Serr v. Sullivan, E.D.Pa., 1967, 270 F.Supp. 544, 546, Aff'd, 3 Cir., 1968, 390 F.2d 619 (so long as some investigatory power is granted, further authority permitted "either ex......