58 F. Supp. 841 | N.D. Cal. | 1945
Plaintiff sues for an injunction and treble damages for alleged acts and practices by defendants constituting violations of section 4(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 904 (a). Defendants have interposed a plea in abatement on the ground that they produced documentary evidence at the request of the Administrator with a specific claim of privilege against self-incrimination as provided for in the Act, 50 U.S.C.A.Appendix § 922(g), and that they may not therefore be subjected to a penalty.
Plaintiffs contend that whether or not a suit by the Administrator is one for a penalty within the purview of the Compulsory Testimony Act, 49 U.S.C.A. §§ 46, 48, defendants were not required to produce the evidence, and therefore no claim, of immunity could properly be made.
The stipulation of facts upon which the plea in bar was submitted for decision shows that investigators from the Office of Price Administration called at defendants’ place of business and requested an examination and inspection of defendants’ records and papers, stating that they were making a check of all the meat jobbers in San Francisco. Phillip Gee, one of the defendants, told the investigators to consult Leonard J. Bloom, their attorney, who had prepared the records theretofore filed by defendants with the Office of Price Administration, concerning the information which the investigators desired. Mr. Bloom told the investigators that he had prepared the records for the Office of Price Administration from information given to him by Mr. Gee, but that all of the actual business records and papers of defendant United Meat Company were kept on the premises of that company. Mr. Bloom told the investigators that they might examine any records that they desired at the company premises on January 5, 1944, and that the defendants claimed all of the privileges against self-incrimination and the immunities contained in the Act. On January 5 Mr. Bloom told the investigators that the records were available but that he wished to serve upon them a document wherein defendants claimed privileges and Immunities, before the investigators examined the records. After consulting with their office the investigators stated that they were unable to accept service of the document and' left without examining the records. Thereafter the investigators informed Mr. Bloom, that the Office of Price Administration would accept service of the document, and after service thereof on one of the investigators an inspection was made of all records covering the meat rationing period. Thereafter a statement was signed by Phillip Gee wherein he again claimed privilege-against self-incrimination.
Section 922(g) of° 50 U.S.C.A.Appendix provides that: “No person shall be excused from complying with any requirements-
Assuming that the present action is one for a penalty, a hardship may be worked, for defendants may be penalized because they were cooperative and not contumacious. It may be that at the trial of the case on the merits, a situation may be presented wherein the court may decide to exclude all or a part of the evidence obtained under the circumstances herein described. But the plea in abatement is based wholly on the Compulsory Testimony Act, Congress has shown a consistent intent that compulsory testimony statutes in legislation involving administrative boards shall apply only when evidence is given under the compulsion of a subpoena, and I am constrained to hold that it did not intend to make an exception of the Emergency Price Control Act.
At the request of the court, the attorneys for the parties have submitted able and thorough briefs on the question of whether or not the action is one for a penalty. This question is squarely presented for decision in another action now under submission to this court. In view of my conclusion that the necessary compulsion for the production of the evidence was not used in this case, it is unnecessary for the court to rule herein on that question and the remaining questions raised in the briefs.
The plea in abatement and motion to dismiss will be denied.