The opinion of the court was delivered by: Juergens, District Judge.
The Federal Trade Commission filed its application for an order
requiring respondents to testify and produce documentary evidence
in an investigation initiated by it.
As authority for its position, it urges the application of
Section 9 of the Federal Trade Commission Act (15 U.S.C.A. § 49).
The Federal Trade Commission, in its investigation to determine
whether the respondents are or have been engaged in unfair and
deceptive acts and practices in connection with interstate sales
of mausoleum plans and franchises, issued an administrative
subpoena duces tecum to the respondents on August 21, 1961,
returnable on September 20, 1961 to the Clay County Court Room in
the Clay County Court House in Louisville, Illinois.
On the date specified for the return of the subpoena, the
respondents failed to appear in response to the subpoena.
This section provides in pertinent parts as follows:
"For the purposes of sections 41-46 and 47-58 of
this title the commission, or its duly authorized
agent or agents, shall at all reasonable times have
access to, for the purpose of examination, and the
right to copy any documentary evidence of ANY
CORPORATION being investigated or proceeded against;
and 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. * * *"
The respondents are individuals doing business as Harrell &
Company, P.O. Box 8, Louisville, Illinois, and are engaged "in
the sale of mausoleum plans and franchises to operate said
The section upon which the petitioner relies grants to the
Commission the power to examine and copy documentary evidence of
any corporation being investigated or proceeded against and
grants to the Commission the power to require by subpoena the
attendance and testimony of witnesses and the production of
documentary evidence relating to any matter under investigation.
Section 5 of the Act (Title 15 U.S.C.A. § 45) gives power to
the Commission to prevent unfair methods of competition or unfair
or deceptive act or practice in commerce and in pursuance of this
power grants the Commission the authority to issue and serve upon
any person, partnership or corporation a complaint stating
the charges and containing a notice of a hearing upon a day and
at a place fixed by the Commission and may require such person,
partnership or corporation to appear and show cause why an
order should not be entered by the Commission requiring the
person, partnership or corporation to cease and desist from
the violation of the law charged in the complaint.
Under the provisions of Section 5 Congress intended that the
Commission should have power to proceed against persons,
partnerships or corporations in the manner described in that
Section 9 of the Act makes no reference to persons or
partnerships as concerns the subpoena powers, but rather the
reference in the authority granted would appear to be limited to
corporations being investigated or proceeded against. It seems
quite obvious that if Congress had intended that individuals and
partnerships were to be proceeded against by Section 9, they
would have inserted those terms and included those identities in
this section as was done in Section 5.
It seems quite clear that the phrase in Section 9 "such
documentary evidence" is susceptible of no interpretation other
than the documentary evidence of any corporation being
investigated or proceeded against. Here there is involved no
corporation, nor are there involved any corporate records.
Rather, according to the petition, the persons against whom the
subpoena is levied are individuals doing business as individuals
and not as a corporation. For this Court to find that Section 9
means not only corporate records but also records of individuals,
as requested, would be to give a completely different meaning to
the statute than that of the wording placed therein by Congress,
and by so doing this Court would in effect be legislating. This
the Court cannot do. Legislation must be left to Congress and not
to the courts.
Following the clear import of the language of Section 9, the
Court reaches the inescapable conclusion that it was meant to
apply to corporate records and ...