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(163 La. 824, 112 So. 799.) Prohibition, § 4 who entitled to who entitled to writ.

4. A disinterested stranger to a litigation upon whom a subpœna duces tecum is served may apply for a writ of prohibition to prevent execution of the writ, since he has no other means of relief.

Discovery, § 3-when subpoena duces tecum issues.

5. A subpoena duces tecum will not issue unless the application shows a necessity for it and, if the application shows that other sources of information are open to the applicant, it must also show that he has exhausted those sources.

Discovery, § 15 Discovery, 15 sufficiency of application.

6. A mere allegation that the files of a newspaper for a prior year are "material and necessary to mover" will not support an application for a subpœna duces tecum.

Discovery, § 2-compliance with statutory requirements.

7. When statutes authorizing the issuance of subpoenas duces tecum are broad and far-reaching, an applicant should be held to a reasonable compliance with every requirement of the law as a condition precedent to the issuance of such a subpoena.

APPLICATION for a writ of prohibition to restrain the Judge of the Civil District Court of the Parish of Orleans from enforcing a subpoena duces tecum directed to and served upon relator upon motion of the defendant in a suit involving the validity of a tax title. Writ made peremptory. The facts are stated in the opinion of the court. Messrs. Deutsch & Kerrigan, for relator:

If an order to produce documents is illegally or improvidently issued, relator has the right to refuse to comply therewith, and to invoke the supervisory power of the supreme court.

Louisiana Farm Bureau Cotton Growers' Co-op. Asso. v. Bacon, 159 La. 170, 105 So. 278; State ex rel. Franklin & A. R. Co. v. Allen, 104 La. 301, 29 So. 114; Re Hibernia Bank & T. Co. 162 La. 251, 110 So. 340.

The subpoena should issue directly to the officer or employee of the corporation who has the records in charge, requiring him to come into court and produce them.

Central Nat. Bank v. White, 5 Jones & S. 297; Lorenz v. Lehigh Nav. Co. 5 Legal Gaz. 174.

A subpoena duces tecum will not issue to compel a third party to produce records in open court, when there are other adequate sources of information available to the party applying for the subpoena.

Louisiana Farm Bureau Cotton Growers' Co-op. Asso. v. Bacon, supra. Printed newspapers are not such "documents" in law as are contemplated as the object of a subpœna duces tecum.

40 Cyc. 2168; Shippen v. Wells, 2 Yeates, 260.

Mr. Theodore Cotonio for La Salle Realty Company.

Brunot, J., delivered the opinion of the court:

This is an application for a writ of prohibition to restrain the judge. of division E of the civil district court of New Orleans from enforcing a subpoena duces tecum which was directed to, and served upon, relator, upon the motion of the defendant in the above numbered and entitled suit. This motion and the court's order thereon are as follows:

"On motion of defendant, Theodore Cotonio, of counsel, and on suggesting to the court that on the trial of this cause certain books and papers in the possession of the Item Company, Limited, publishers of the Daily Item, in the city of New Orleans, said books and papers consisting of the advertisement for delinquent state taxes for the year 1922 published in said newspapers in the months of August and September, 1923, are material and necessary to mover; and that the owners of said newspapers should be required to produce same in court.

"It is ordered by the court that the Item Company Limited, of the city of New Orleans, do produce in open court on Thursday, March 31, 1927, at 10:30 A. M., and on such other day or days that this case may,

be continued to, its files showing the advertisements by the state tax collector for delinquent taxes of 1922; said publications having been made in the months of August and September, 1923."

The service of the court's order upon relator was followed by the application to this court for a writ of prohibition and for an order directing the judge to show cause why the writ should not be perpetuated. Relator based its application upon four grounds, the substance of which are: That relator is a corporation, and a subpoena duces tecum must be directed to some officer, agent, or servant of the corporation; that the motion for the subpœna duces tecum does not set forth the necessity for the order; that the motion and order show that other adequate sources for obtaining the information sought were open to mover; and that relator is ordered to produce printed copies of newspapers which cannot lawfully be the object of a subpoena duces te

cum.

Upon considering the application, this court granted the writ of prohibition, as prayed for by relator, and ordered Honorable William H. Byrnes, Jr., judge of division E of the civil district court of New Orleans, to show cause on April 7, 1927, why the writ of prohibition should not be perpetuated and made peremptory.

The learned judge did not file a return herein, but the La Salle Realty Company, for exception and return, says that this court is not vested with jurisdiction to determine relator's application, for the reason that relator is not a party to the suit out of which this application grew; that relator has no interest in, and cannot be affected by, any judgment that may be rendered in said suit; that the application does not contain any substantial averment of injury or damage to relator in excess of $2,000; and that relator has not exhausted all efforts for redress in the court a quo.

On the issues stated, the matter

is submitted for final consideration. We will first dispose of the contentions of respondent La Salle Realty Company. The respondent has evidently confused the general supervisory powers of this court with its appellate jurisdiction in civil suits. This court has consistently held that its supervisory powers must not be confounded with its appellate jurisdiction. In the exercise of its supervisory powers, the court is concerned in the prevention of abus- visory powers of es or illegal acts, regardless of the amount involved, and its jurisdiction must be tested from that standpoint alone.

Courts-super

supreme court.

With reference to the question of prematurity which is urged by respondent it is the general rule that applica- Prohibitiontions for writs of when writ lies. prohibition will not

be entertained, unless the appropriate method to obtain relief is first resorted to in the lower court. Exceptional cases, however, have been presented, in which this court ex rei necessitate has refused to apply the rule.

-who entitled

In this application it is interesting to note that, in so far as our research has disclosed, this is the first time an application for a writ of prohibition has been presented to this court by a relator who is a wholly disinterested and perfect stranger to the litigation which gave to writ. rise to it. Under the circumstances relator has no alternative. It must comply with the order or subject itself to contempt proceedings, from which there is no appeal. Therefore, if we find that the order complained of was illegally and improvidently issued, as contended by relator, we think this is an additional reason for reaffirming the recent ruling of this court in the case of Louisiana Farm Bureau Cotton Growers' Co-op. Asso. v. Bacon, 159 La. 169, 105 So. 278, in which case we said: "If it should be found that the order to produce was illegally or improvidently issued, as

(163 La. 824, 112 So. 799.)

contended by relator, then unquestionably the relator had the right to refuse to comply with such order, and to invoke the supervisory power of this court."

A corporation is a juridical person. It cannot respond to a subpœna ad testificandum, and 3 Bouvier's Law Dict. p. 3165, defines a subpoena duces tecum as "a writ or process of the same kind as the subpœna ad testificandum, but with a clause requiring the witness to bring with him and produce to the court books, papers, etc., in his hands, tending to elucidate the matter in issue."

This definition is supported by authority. The subpoena duces tecum therefore requires the personal attendance of the witness named in it and the production and identification by him of the records, etc., it calls for.

Discovery-com

A corporation acts only through its officers, agents, and servants, and, while it may sue and be sued in its corporate name, it cannot be compelled to repelling corpora- spond to a subpœna tion to produce duces tecum when the order does not designate the president or some of ficer or agent of the corporation through whom it may act.

papers.

This particular question has not heretofore been presented to this court. A reference to the digests, however, shows that, while there are a few decisions to the contrary, the weight of authority in our sister states holds that the subpœna should issue directly to the officer or employee of the corporation who is the custodian of the records desired, or if the subpoena is directed to the corporation, it should designate the president or some other officer or agent of the corporation as the person who shall respond thereto. Relator has cited one of these authorities, viz., Lorenz v. Lehigh Nav. Co. 5 Legal Gaz. 174. In that case the court said: "If the master" of a servant is "a mere legal entity," i. e., a corporation which can "be acted on only through its

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er sources of information are open to the applicant, it must also show that he has exhausted those sources.

"The application must also show the necessity for the inspection or production, although an indispensable necessity for their inspection need not be shown. A mere statement that inspection is material and necessary is not sufficient, the facts from which the court can determine the necessity must be stated positively and not argumentatively or inferentially. If the application shows that there were other sources of information open to the party it must show an exhaustion of such sources." 18 C. J. 1124, 1125.

There is no sufficient showing in the motion of the La Salle Realty Company, which is quoted supra, or in the affidavit thereto, which we have omitted to quote, of a necessity for the issuance of

application.

a subpoena duces sufficiency of tecum. It is mere

ly alleged that the files of the paper desired "are material and necessary to mover." The motion asks for the production of the files of a daily newspaper published during the months of August and September, 1923. It does not contain either an allegation or denial of the existence or nonexistence of other sources of information available to mover, nor does it contain an averment that mover has made an effort to ascertain if other sources of information are open to it. The omission of these allegations may not be sacramental, but it is indicative, if not persuasive, of the fact that mover preferred to relieve itself of re

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It has been held that a subpoena duces tecum is available to secure the production of a newspaper in the possession of a third person, but it is not "available to compel the printer of a newspaper, to produce printed copies of his newspaper." 40 Cyc. 2168. In the case of Shippen v. Wells, 2 Yeates, 260, it is said: "If the party wants the benefit of them, it behooves him to purchase them or get them in the best way he can."

Whether or not this court will

ever reach that conclusion, in view of the provisions of articles 140 and 473 of the Code of Practice, is problematical. We are not now inclined to do so, nor is it necessary in this case that this question should be decided, for we have found that the order attacked by relator issued illegally and improvidently.

For these reasons it is ordered and decreed that the writ of prohibition issued herein to Hon. William H. Brynes, Jr., judge of division E of the civil district court of the parish of Orleans, forbidding, enjoining, and prohibiting the said judge from enforcing the order of subpoena duces tecum issued by him against the Item Company, Limited, in the proceeding entitled "Walter Leon Keiffe v. La Salle Realty Company," No. 166,602 of the docket of that court, be, and the same is hereby, perpetuated and made peremptory, at respondent's, La Salle Realty Company's, cost.

ANNOTATION.

Form and particularity of citation of subpoena duces tecum for production of corporate books or documents. [Discovery and Inspection, § 16.]

There is but little direct authority on the question under annotation, it apparently having been made an issue in but very few cases. However, the general practice in respect to such citations may be gathered from a number of cases wherein the form in which they were issued appears, although no question may have arisen as to their validity or sufficiency.

The decision in the reported case KEIFFE V. LA SALLE REALTY Co. ante, 82), that a subpoena duces tecum against a corporation must designate some officer or agent through whom it may act, or else the corporation cannot be compelled to respond, is in harmony with what seems to be the more common practice in respect to the manner and form in which this process should issue. Most authorities seem to assume that a designation of the particular officer of the corporation

who has the custody of the books or documents required is the most desirable form of citation. There are several reported cases in which this method was adopted without any objection. It may be referred to as the New York rule, for this manner of citation is expressly provided in the Civil Practice Act, § 413, which reads: "The production upon a trial, of a book or paper belonging to or under the control of a corporation, may be compelled in like manner as if it was in the hands, or under the control, of a natural person. For that purpose, a subpoena duces tecum must be directed to the president, or other head of the corporation, or to the officers thereof, in whose custody the book or paper is."

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In the following cases subpoenas duces tecum were directed to officers of corporations, and no objection was raised to the validity or sufficiency of

the citation: American Lithographic Co. v. Werckmeister (1911) 221 U. S. 603, 55 L. ed. 873, 31 Sup. Ct. Rep. 676 (officer); Erie R. Co. v. Heath (1871) 8 Blatchf. 413, Fed. Cas. No. 4,513 (order directed to corporation and its president); Re Sykes (1878) 10 Ben. 162, Fed. Cas. No. 13,707 (officer having custody of papers required); Johnson Steel Street-Rail Co. v. North Branch Steel Co. (1891; C. C.) 48 Fed. 195 (officer); Santa Fé P. R. Co. v. Davidson (1906; C. C.) 149 Fed. 603 (auditor who had custody of books); Lorenz v. Lehigh Nav. Co. (1873) 5 Legal Gaz. (Pa.) 174 (officer having custody of books required).

Bank of Utica v. Hillard (1825) 5 Cow. (N. Y.) 153, would seem to be some authority for the view that the citation of any officer or employee of a corporation, other than the particular individual having custody of the books or documents required, would be ineffective for any purpose, for in this case it is said: "The obligation of Colling [a bank clerk upon whom the subpoena duces tecum was served] to produce the books, upon the duces tecum, depends on the question whether they were in his possession and under his control. He was the mere clerk of the plaintiffs, and in that character had no such property in or possession of the books as imposed the obligation to bring them. They were under control of the cashier, who might forbid their removal, or place them beyond the reach of the witness."

In Crowther v. Appleby (1873) L. R. 9 C. P. (Eng.) 27, Lord Denman asked: "When documents are in the possession of a company, who but the secretary can be subpoenaed to produce them?"

But while the general practice seems to be to direct the subpoena duces tecum to the officer of the corporation having the custody of the documents required, the necessity for this particularity of citation is doubted in

Wilson v. United States (1911) 221 U. S. 361, 55 L. ed. 771, 31 Sup. Ct. Rep. 538, Ann. Cas. 1912D, 558, where the court said: "Where the documents of a corporation are sought, the practice. has been to subpoena the officer who has them in his custody; but there would seem to be no reason why the subpoena duces tecum should not be directed to the corporation itself. Corporate existence implies amenability to legal process." In this case a subpœna duces tecum was directed to a telegraph company, without mention of any individual or officer, and it was held that the officer of the corporation having in his possession the books of the corporation described in the subpœna must produce them, or be held in contempt, and the fact that the subpœna was not directed to the officer personally, but merely to the corporation, was no defense.

The necessity for extreme particularity in the citation in subpoena as duces tecum was brought into question long before the Wilson Case, however, for in Amey v. Long (1807) 1 Campb. 17, 170 Eng. Reprint, 860, Lord Ellenborough said: "Although a paper should be in the legal custody of one man, yet if a subpoena duces tecum is served on another who has the means to produce it, he is bound so to do."

In Com. v. Southern Exp. Co. (1914) 160 Ky. 1, L.R.A.1915B, 913, 169 S. W. 517, Ann. Cas. 1916A, 378, it was held that the constitutional privilege against self-crimination does not extend to corporations, and that a corporation may be required to produce its books and papers before a grand jury, either by a subpoena duces tecum ad testificandum directed to the agent of the corporation having possession of such records, or by a subpoena duces tecum without the ad testificandum clause, the subpoena being directed to the corporation itself and served upon the proper agent. P. U. G.

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