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UNITED STATES EX REL. LEHIGH VALLEY R. CO. v. GOVE

August 7, 1933

UNITED STATES on behalf of LEHIGH VALLEY R. CO. et al.
v.
GOVERNMENT OF GERMANY



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a motion for an order vacating and setting aside the order of this court dated the 27th day of June, 1933, and the subpoenas issued thereon, and why the petitioners should not have such other and further relief in the premises as it may deem proper.

This motion comes before the court on an order to show cause dated July 25, 1933, which stayed all proceedings under the order of June 27, 1933, and subpoenas until the hearing and determination of this motion and the entry of an order thereon.

 On June 27, 1933, Robert W. Bonynge, as agent of the United States before the Mixed Claims Commission, United States and Germany (42 Stat. 2200), applied under authority of the Act of June 7, 1933 (Pub. No. 31, 73d Cong. [22 USCA §§ 270d-270g]), for subpoenas directed to John Qualters, Horace Qualters, and Rose Qualters, the petitioners, and another, requiring each and all of them to appear with certain papers and submit to examination.

 On June 27, 1933, the court issued the order sought, appointing the United States commissioner to take the evidence, and requiring the clerk of this court to issue subpoenas to the witnesses accordingly. The applicant was ordered to give reasonable notice of the times and places of taking said testimony to the German agent before said commission, and the clerk of this court was ordered to forward to said German agent a certified transcript of the testimony taken.

 The subpoena was issued returnable July 26, 1933.

 So much of the Act of June 7, 1933 (Pub. No. 31, 73d Cong.), which amended the Act of July 3, 1930 (46 Stat. 1005), as is necessary for consideration herein, reads as follows:

 "Sec. 5. That the agent of the United States before any international tribunal or commission, whether previously or hereafter established, in which the United States participates as a party whenever he desires to obtain testimony or the production of books and papers by witnesses may apply to the United States district court for the district in which such witness or witnesses reside or may be found, for the issuance of subpoenas to require their attendance and testimony before the United States district court for that district and the production therein of books and papers, relating to any matter or claim in which the United States on its own behalf or on behalf of any of its nationals is concerned as a party claimant or respondent before such international tribunal or commission.

 "Sec. 6. That any United States district court to which such application shall be made shall have authority to issue or cause to be issued such subpoenas upon the same terms as are applicable to the issuance of subpoenas in suits pending in the United States district court, and the clerk thereof shall have authority to administer oaths respecting testimony given therein, and the marshal thereof shall serve such subpoenas upon the person or persons to whom they are directed." (22 USCA §§ 270d, 270e).

 In a similar proceeding where the subpoena was directed to and served upon another person in the District Court of the United States for the Northern District, Eastern Division of Ohio, Judge West, on July 17, 1933, rendered an extended opinion denying the motion to vacate the subpoena and requiring the witness to appear and answer.

 As the questions presented on this motion are substantially the same as on that motion, I might rest my decision on that opinion, with which I am generally in accord, and, as the questions appear to have been presented here somewhat differently, although in substance the same, and in different order, I will briefly rule on each objection presented.

 In view of the provisions of section 6 of the act, supra, conferring authority upon the District Court "to issue or cause to be issued such subpoenas upon the same terms as are applicable to the issuance of subpoenas in suits pending in the United States district court," the petitioners have no right to raise many, if any, of the objections presented.

 The objection of the petitioners that, since these claims have been three times dismissed, and since there has been no ruling on the part of the Commission that it will entertain the petition for rehearing, there is no claim pending, and no claim in which the United States is concerned as a party claimant, is not sustained.

 The act authorizes the issuance of the subpoena when the desired evidence will "relate to any matter or claim in which the United States * * * is concerned as a party claimant ...


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