term as used in statute authorizing issuance of subpoenae duces tecum
How later courts described this case
- term as used in statute authorizing issuance of subpoenae duces tecum
Written by the judges who cited it.
The opinion
MADDEN, Judge
(dissenting).
I disagree with the decision of the court, not on the ground that the decision would be wrong if this were an appropriate case for decision. I think the question should not be decided at all, in the instant case. It is an important and a difficult question, as is demonstrated by the lengthy opinion of the court.
As the plaintiff puts the problem before the court “* * * the issue in this particular case is quite simple and limited: how can plaintiff get certain documents it needs from the Government?” The answer to the plaintiff’s need is found in Section 2507 of the Judicial Code, which is quoted in the opinion of the court, and which provides for calls upon the departments of the Government for information or papers. That section is plain and beyond controversy. The only reason the plaintiff did not use the call procedure was that it thought that it was going- to have to ■ complete ■ its- introduction of evidence before it would, in the normal course of *444 waiting for the response to the call, have its evidence available. Decision as to postponements of hearings are, of course, within the complete control of the commissioner of the court, and of the court itself, and, when a call is requested without delay, the necessary postponement will be granted.
The statutory provision for calls on the departments says “The head of any department or agency may refuse to comply when, in his opinion, compliance will be injurious to the public interest.” This provision seems to be quite incompatible with the idea of a subpoena duces tecum, peremptorily requiring the production of papers. Unless the court would accept, for a response to the subpoena, in place of the papers, a statement by the head of the department that, in his opinion, their production would be injurious to the public interest, the call procedure and the subpoena procedure are in irreconcilable conflict. It would be quite unheard of that the process of a court should leave to the one upon whom it is served complete freedom to obey it or to respond that he declined to obey it.
The reconciliation of the apparent incompatibility is too difficult to be undertaken by a court as a work of supererogation. I would leave its resolution to a time and occasion, if one ever occurs, when its resolution is required.