could, through contumacy, require the investigative agency to
invoke the aid of the Court to enforce compliance with a
subpoena and in the judicial proceeding be enabled to gather
information to which he was not entitled in the investigative
proceeding." This contention proceeds on the false assumption
that the investigation, absent judicial intervention, is valid
ab initio and is capable of "adducing facts." Certainly, a
"subject" could not depose an Internal Revenue agent without
the aid of the Court, as petitioner supposes, but similarly,
where a challenge exists, the agent could not "investigate"
without a judicial order. We are not granting to respondent
"rights" which he would not have as the "subject of an
investigation," but, rather, we are merely giving him the
opportunity to have the Court realistically determine whether
the investigation itself shall validly continue.
Accordingly, we shall permit respondent to depose petitioner
herein in open court on Thursday, June 2, 1966, limiting such
discovery to the following issues raised by the pleadings thus
1) What is the chief purpose of the investigation?
2) Has a good faith determination been made that a second
examination is necessary?
3) Does the Internal Revenue Service already have in its
knowledge and possession the information it seeks?
4) Was this investigative proceeding instituted to obtain
evidence against respondent for use in a criminal prosecution?
After due consideration, we must finally conclude that the
instant action brought to enforce an Internal Revenue Summons
does not afford to respondent the right to trial by jury as
We are satisfied that this proceeding is brought solely
under the provisions of a federal statute, Section 7604(a) of
the Internal Revenue Code of 1954, is governed by the terms
thereof, and is not subject to the provisions of the Seventh
Amendment to the Constitution of the United States and Rule
38(a) of the Federal Rules, which provide for trial by jury in
suits at common law only. Section 7604(a) speaks only of
adjudication of the issues by the United States District
Court, and, in no manner bestows a right to trial by jury.
Furthermore, a suit to compel compliance with an
administrative subpoena is, by nature of the relief sought, a
mandatory injunction proceeding, equitable in character, and
traditionally triable by a Court alone, without the aid of a
jury. Injunctive proceedings are characteristically
"equitable," and, under the historical "jealousy of the
Chancellor" need not be submitted to a jury for determination.
See Moore, Federal Practice, supra, Vol. 5, pp. 115-119. The
Seventh Amendment merely preserved the right to jury
proceedings in actions triable to jury at common law at the
time the Constitution was enacted. It clearly did not create
any new rights. id. at pp. 85-86. Similarly, the Federal Rules
neither enlarge nor abridge the rights granted by the
Constitution. id. at p. 126.
Thus, any right to jury consideration which respondent might
retain must rest on its argument that it has raised as a
defense a common law tort, abuse of process, which was
actionable at law as trespass on the case. Under the rationale
of Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3
L.Ed.2d 988 (1958) and Dairy Queen v. Wood, 369 U.S. 469, 82
S.Ct. 894, 8 L.Ed.2d 44 it is contended, respondent is
entitled to a preliminary jury trial, at least on the legal
issues it has raised in its answer. We cannot agree. In
Beacon Theatres, supra, the Court held that where legal claims
for damages are presented along with equitable claims in the
same action whether by complaint or counterclaim, a litigant is
entitled to a jury trial first on those claims cognizable at
law, so that his right thereto will not be defeated by
collateral estoppel. Looking to the relief sought herein, the
traditional method of determining the nature of an action, it
is apparent that Petitioner seeks injunctive relief, alone,
while Respondent has presented
nothing which rises to the status of a "claim" either legal or
equitable in nature. There is no counterclaim present as in
the above cited cases to which a jury could give separate and
meaningful consideration. To hold as Respondent urges that the
mere existence of a legal defense, without a claim based
thereon, gives rise to a jury proceeding, would be to do
violence to the time-honored separation between law and
equity, for surely, a litigant might always defeat the
Chancellor's exclusive jurisdiction by interposing a legal
defense. No such right was extended by the Seventh Amendment.
We must conclude that the facts before this Court are far
removed from those existing in Beacon Theatres, supra, wherein
the only relief sought by either side is equitable in nature.
Accordingly, we must withhold from Respondent the
opportunity to have the instant action tried to a jury.
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