Ex parte Moses

53 F. 346, 1892 U.S. App. LEXIS 2029

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: December 27, 1892
• Docket: No. 32
• Status: Published

Opinion

DALLAS, Circuit Judge.

Under section 4906 of the Revised Statutes, a subpoena was issued by the clerk of this court, commanding George Stuart to appear and testify before an officer in this district authorized to take depositions end affidavits, at a time stated in the subpoena, and at a place not mere than 40 miles from tbe place where the subpoena was served upon s aid George Stuart. In this subpoena a clause of duces tecum was inserted, commanding' also the production of a certain letter. The subpot na is under the seal of this court, and the testimony to be taken is for use in a contested case pending in the patent office. The witness has duly appeared and testified; but, upon a ground and for reasons which need not be particularly mentioned, but which would not constitute a justification of his refusal if a lawful subpoena in that behalf had been duly served opon him, he has declined, and still declines, to produce the letter referred to. He disclaims, through Ms counsel, any disrespect to the court, or intended contempt of its process, and see’vS only an adjudication upon the question of the regularity and suffic ienev of the subpoena, as to the duces tecum clause. To this he is entitled. If the writ is not lawful, disobedience is not a contempt. Rev. St. § 725.

The authority to issue any subpoena such as has been issued in this instance is, and must be, wholly statutory. It is derived from, and is dependent solely upon, the section of the Revised Statutes which I have mentioned. In the absence of that section, any subpoena, either to testify or to produce a document, could not, in aid of a proceeding in the patent office, be lawfully issued by the clerk of this court. It, and it alone, casts the duty upon the clerk to issue a subpoena; and in charging Mm with the performance of that duty it expressly defines and limits its extent, and, of course, restricts Ms power within, the same boundaries!. The language of this legislation is not general or indefinite; it is particular and specific, — -“the clerk * * shall * * issue a subpoena for any witness, * * * commanding Mm to appear and testify.” ft is not admissible that, from these words, a duty and authority to issue a subpoena commanding, under penalty, the production of documents, should be implied. This is unquestionable upon general principles; but in this matter the intent of congress that sue!) an implication of power should not be assumed is quite obvious. In this connection it lias said nothing whatever about a subpoena duces tecum, but, in dealing with tbe subject of depositions under a dedimus potestatem, it has plainly and expressly distinguished a subpoena to testify merely from a subpoena duces tecum. I must presume that the distinction was in mind in the passage of section 4906, as well as in the enactment of sections 868 and 869, and that, if in the former, as in the latter, it had been intended to authorize a subpoena duces tecum, that intention would have been expressed. The rule for attachment is discharged.