Civil Aeronautics Board v. Hermann

PETITIONER:Civil Aeronautics Board
RESPONDENT:Hermann
LOCATION:Selma, Alabama

DOCKET NO.: 540
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 353 US 322 (1957)
ARGUED: Apr 25, 1957
DECIDED: May 06, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – April 25, 1957 in Civil Aeronautics Board v. Hermann

Earl Warren:

Number 540, Civil Aeronautics Board, Petitioner, versus Ida Mae Hermann, et al.

Mr. Solicitor General.

J. Lee Rankin:

May it please the Court.

This is an action which involves an enforcement proceeding for a subpoena duces tecum issued by an administrative agency, the Civil Aeronautics Board, for a group of documents against the — a number of respondents.

The question presented by the case is whether or not the agency has the burden of satisfying the District Court in each case, whether each document that is subpoenaed is relevant and material, whether or not it is in possession of the person to whom the subpoena is directed, and whether or not, prior to the issuance of such a subpoena, it must take the testimony in the administrative hearing and determine first the existence and then the location of the documents, and then proceed to inspect the documents to determine their relevancy and materiality.

The subpoena was issued in connection with a complaint, formal complaint, filed against the respondent which involves a number of parties.

The complaint charges that these parties are engaged in violation of Section 401 (a) of the Civil Aeronautics Act.

They are licensed.

Two of them are licensed as irregular and infrequent carriers.

The complaint charges that they are engaged in operating regular and frequent carriage of passengers and freight in violation of the statute.

Also, that they are engaged in using the various response in various activities in connection with this operation which are a violation of both the economic regulations and the statute in trying to accomplish this regular and frequent operation contrary to their license, and also, in using and controlling various corporations and nominees so as to be engaged in violation of the regulations of the Board under the statute.

The parties involved — the principal parties are Ida Mae Hermann and Irving Hermann.

And they are individuals who have a partnership known as Nevada Aero Trades.

That partnership has the licenses to certain aircraft, and those are least to the carriers known as Great Lakes Airlines and Currie Transport Corporation.

Those are the only two carriers involved.

Then, there are 12 different corporations known as, Skycoach, with various additions to the name but that’s the principle attribute which are agencies engaged in various principal cities in the United States in obtaining the sale of tickets for the transfer and carriage of various people from — principally, from New York to Los Angeles by way of Chicago or Kansas City or Philadelphia, intervening and back the other way.

On pages 36 and 37 of the record, it is set out in detail attached to the complaint, an analysis of the various trips that these carriers made of the Currie Transport being bracketed in — in a square bracket and the Great Lakes Airlines in a — in parenthesis showing the frequency that the Board charges that they operated in determining or alleging that they are engaged — were engaged in irregular — in frequent and regular transport instead of irregular and infrequent transport.

Now, there were quite a number of documents that were involved in the subpoena.

The charge is that this activity, in violation of the licenses covered a period from December of 1951 on through 1953, about 38 months involved.

And it’s claimed that — and the Board claims that these two parties, the Hermann’s, actually controlled Skycoach, all the 12 corporations that were engaged in selling these tickets, as well as the Nevada Trades, the partnership and a banking corporation that they had which furnished the banking services and another which handled their — their gasoline.

And these 12 Skycoach corporations, the President was the brother of Mrs. Hermann, one of the two partners and the principal respondents.

And Great Lakes Airlines Agency, which served as a banking — doing the banking function for the activities was head as its vice president of Mrs. Hermann’s sister.

So, there’s that family connection in regard — in addition to all of the other aspects.

Now, it was seemed clear that these various documents that were subpoenaed were relevant to this controversy by reason of — of the very nature of the complaint and the documents who requested it.

The documents that were included were the financial records of all of the various respondents.

The correspondence and agreements between the parties, the aircraft that was used, that in regard to it, the licensing and the — and leasing and any agreements of that character, the personnel advertising material, personal records, the airline tickets which they are always — they’re supposed to be issued three copies, one for the auditor and one for the ticket agency, and one for the carrier, and there is probably several thousand at least documents that are involved in the request.

Now, it’s apparent that in order to — to show the nature of the complaint and satisfy the proof required that the agency had to show that this activity which was carried on with — as alleged deliberately and willfully in violation, and also allege was concealed from the Board had to be proved by records which would be largely in the hands of the respondents themselves.

And odds complained that the Board had it in its possession the records so that it was not necessary for it to subpoena these documents.

The Government concedes as to such records as the Board actually had that there would be no necessity for such a subpoena to be issued, or that the Court would be required to enforce it.

But the fact is and I — I have been advised by the Board that they did not have these records.

J. Lee Rankin:

They had a report in two different forms of the type of — or the activities in the carriage of passengers which were in the nature of summaries and financial report that was in the nature of summaries.

They also had some —

Was that disputed in the (Inaudible)

J. Lee Rankin:

I — I don’t know that it is.

I haven’t — they don’t indicate the extent of their claim as to what the Government has.

But I tried to find out from the Board exactly what it had, and on their statement to me, I represent it to the Court, but that is all that we do have in that nature.

We also — I also inquired about advertising materials and they had some advertising materials of Great Lakes Airlines, one of the carriers involved here, regular carriers.

But they had none as to Skycoach, and they had none as to Currie Transport, the other carrier.

And the Board says that over 99% of the advertising was handled under the name of Skycoach, and by it although they claimed to be under the direction of the two Hermann’s.

So that what little they had was not anything like this, involved in the subpoenas.

The Board — the examiner overruled the objections to the subpoena as being oppressive and they — and then, the Board acted to overrule such objections, and the District Court overruled the objections.

And the District Court first ordered that there should be at 10 days postponement during which time the party should try to see if the information would not be furnished, and the Board proceeded to have its people go to the parties and examine their records and try to get the material and they were unable to obtain any satisfactory examination.

They did not get correspondents.

They were not able to obtain the certificate of stock that a man by the name of Smith, vice president of — executive vice president of Currie Transport, had issued to him and said he was unable to find.

They were the one who know because they claimed that Smith was nearly the nominee for the Hermann’s and that they wanted to see the endorsement on the stock to see if the certificates — to see if it had been endorsed over in blank in that situation.

The purpose of the District Court of doing what it did in aid to the Board in determining the objection or was it (Inaudible)

J. Lee Rankin:

It appeared to be the conventional thing to see if they could get together and get it solved between the parties.

But the charges are obviously very serious to these parties, and it — if the Board’s complaint is justified, and they had some information that — in regard to prior examination of parties in connection with Skycoach that supported the complaint before they ever filed it.

It is of the nature that if these records show what the Board thinks they will show, they would be damaging and — and justify the Board in revoking the licenses which are very profitable and requiring a cease-and-desist which they asked against all of the operations, Skycoach and the various individuals involved.So that they found that they were — the information in the documents were not furnished in this kind of an experience.

Felix Frankfurter:

Mr. Solicitor, since Justice Harlan asked you as to the purpose of the District — the meaning of what the District Court did in the initial state, you becoming into it, but that — at this point is just as well — what do you understand the District Court is qualifying to do by the decision of the Court of Appeals?

J. Lee Rankin:

Well, it seemed like —

Felix Frankfurter:

I don’t quite understand it.

J. Lee Rankin:

— a first — they first put a burden upon the agency, and that’s why the Government is so disturbed as far as the enforcement ability and powers of administrative agency are affected by this decision, and this is not the only one.

There are three others that the same Circuit Judge has recently handed down of the same general purport.

And he said, “First, they had to go back and — and swear witness and determine what documents they were — were, who had the documents, and whether they were relevant and material.”

That is the agency itself.

Then it — under its inspection power which —

Felix Frankfurter:

Now, may I stop you there?

J. Lee Rankin:

Yes.

Felix Frankfurter:

I suppose the — and subpoena does that in a way, doesn’t it?

J. Lee Rankin:

Well, it does except that —

Felix Frankfurter:

It indicates what document it was.

It identifies the class of documents and the period for which a disclosure is required.

J. Lee Rankin:

Yes, but it’s in categories, very largely.

I want to make that clear to the Court.

Felix Frankfurter:

Yes.

J. Lee Rankin:

It doesn’t call for each one because we just — the Board just didn’t know every single document.

Felix Frankfurter:

But we — but the Court of Appeals said, “Required by — the individual documents should use, if required by the circumstances.

If required by the circumstances, the individual documents should be inspected by the judge.”

I don’t understand that.

When are the circumstances not required, the individualization is required?

J. Lee Rankin:

Well, we read it as though he requires it in all cases, because —

Felix Frankfurter:

Well, how can you read that sentence, that clause?

It requires —

J. Lee Rankin:

The, “If required?”

Well, because he treats it as though it’s a constitutional right to have every document determined by the Court to be relevant and material or you can’t even have them produce to look at.

Felix Frankfurter:

I could understand that proposition without committing myself to it.

But if I were the District Judge, I wouldn’t so read the instruction.

Maybe I should, but I — my fear is not incapable of writing English, so it’s clear.

J. Lee Rankin:

Maybe we’re too careful of it but —

Felix Frankfurter:

But I’m not saying you shouldn’t be but —

J. Lee Rankin:

Then, after we’ve gotten through the process of having such a witness testify as to the relevancy and materiality in the custody of the documents, we were directed by the Court, that is the agency itself, to use its inspection power and make copies and photographs of these various documents.

And if — at that point, it was discovered that there would be other evidence that was withheld or necessary.

We would have put him up — put on a further witness or witnesses to determine what other documents were necessarily available.

And then, at that point, for the first time, would the administrative agency be permitted to issue subpoena to try to get these documents?

And then, after the subpoena was issued and set out the various documents desired, after we follow these other three steps, the District Court was to examine each one in any enforcement procedure to determine whether or not the document requested was relevant and material, document by document.

Now, that is what we think is an impossible situation.

It’s a reversal and departure from all of the principles under Rule 34, and what the civil rules of procedure in general practice which we try to accomplish.

And that — there, the rule is whether or not a document in connection with discovery is probably material, and that is all that’s required.

Now, this Court —

(Inaudible)

J. Lee Rankin:

Yes.

(Inaudible)

J. Lee Rankin:

Apparently, the purpose was to have the entire — every document there to be ruled on step by step by the Court, and have them sifted out in that manner.

Now, we think this is a fundamental departure from the decisions of this Court.

We think the law, prior to this, these decisions by the — this Circuit Judge in this Circuit, was well settled by the Oklahoma Press case and the Endicott Johnson case, and that the questions is properly, whether or not the various documents by categories are plainly irrelevant and immaterial, or generally relevant and material.

Felix Frankfurter:

Where is the — where is the description of the — of the categories that were asked to be produced, Mr. Solicitor?

J. Lee Rankin:

In page 39 is a detail of the subpoenas.

On — in the appendix of the respondent’s brief, they have set out a summary of the various items in general summarization, which we do not — do not thoroughly —

Felix Frankfurter:

Do not — is the burden of — of the Court of Appeals dissatisfaction with the breadth of the subpoena?

J. Lee Rankin:

I think it’s too full.

I think that he treats it as though we’re asking for far too much.

And the Board asked for so much because the complaint involves a violation during this entire period, and they’re asking for the various transactions that occurred during the period.

Felix Frankfurter:

Now, suppose the Court had said, “You don’t have to have court approval of each individual document, you may ask by categories.”

But the range, the time and period of the desired documents is something within the Court’s discretion and as you — as we view the matter, it appears to us that 38 months is a little long, but we think it ought to be restricted for two years that to say, subject to the trial court’s discretion when the case get — goes back on a showing made by the Board that they do need 38 months, would you be here?

J. Lee Rankin:

I don’t think so.

Felix Frankfurter:

You wouldn’t.

J. Lee Rankin:

It — it isn’t — we — we might be urging before the lower court.

Felix Frankfurter:

Yes, I understand that, but you wouldn’t object to that kind of indication that the limits are matters of judgment, not the whole.

We’ve been just a little too extensive and prove it for the wider period of the District Judge.

J. Lee Rankin:

Yes.

We recognized that the Court must have control under the discretion of — of the range of the demands, and whether they are unreasonable.

The Court did try to take that into account in — a regard here though, by saying that the documents could be furnished over a period of time, so they wouldn’t be taking these books and records all away from the respondents, but could take certain parts of them.

And then, examine those and then return others so that it would be a staggered examination.

Felix Frankfurter:

May I ask you one — may I ask you one little more question because I think you’re quite right in saying this is a far-reaching importance in the relationship between the administrative agencies in Court.

Suppose the Court had said, “The categories on their face seemed — the subject matter seems relevant.

The complaint, the complaint is within the scope of the agency’s power.

Therefore, we direct obedience to subpoena, preserving all of the right to the — to the defendant,” whatever he is called, “to object to particular documents.”

And if that objection is made, that should go to the Court for determination, would you be here?

J. Lee Rankin:

No, I don’t think so.

J. Lee Rankin:

We recognize that the — the system has a right in this area.

Felix Frankfurter:

What you’re — what you’re objecting to is your interpretation of this decision that if an agency asks for a body of documents which they inevitably must ask in an inquiry like this.

It isn’t just one document, there are two.

If in the normal course of the body of documents, that if on the face of the — of the subpoena, the subject matter indicated that the document sought to be elicited, is relevant to the complaint of the agency.

The Board doesn’t have to justify each separate unit of the body of documents.

J. Lee Rankin:

That’s our position, Your Honor.

Felix Frankfurter:

And you interpret the Court of Appeals’ decision to be the opposite of that.

J. Lee Rankin:

Yes, and we — we contend that it’s very destructive of this whole area of action to try to protect the public interest as far as the administrative agencies of the Government are concerned and is — it reduces materially what could be accomplished by an ordinary citizen in just his own personal litigation.

Felix Frankfurter:

In other words, the Board, the — the agency, because these applies to all agencies —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— if this rule prevail.

They would themselves have to then visit — should they with themselves have to speculate as to the relevance of each document, or they could make a call for it.

When it’s a — when it’s challenged, whatever the period is, six months a year is always involved in these big investigation, the considerable body of documentation, doesn’t it?

J. Lee Rankin:

Yes.

Felix Frankfurter:

But the Court would have to pass on each in relation to, he has yet speculated scope of the inquiry before the Board.

J. Lee Rankin:

That’s correct.

Earl Warren:

General, am I — am I correct to — on the question of time that the District Court did limit this to two months at a time, did it not, so that — so that there would not be too many documents taken away from their place of business in one time?

J. Lee Rankin:

That’s correct.

Earl Warren:

Two months at a time.

J. Lee Rankin:

And he tried to that deliberately so that it wouldn’t appear with the operation of business.

And I would like to point out one thing as to these various ticket coupons and the necessity for them.

You see, in order to — what happened according to the contention of the Board in this activity was that Great Lakes Airlines was suppose to have tickets issued for news on Great Lakes Airlines and nothing else.

And it’s the contention of the Board that Skycoach would issue tickets and would take those tickets and take passengers on Great Lakes Airlines and Currie Transport interchangeably so as to make this in the nature of a regular airlines operation.

And by tracing through the activities, the ledger account that’s set out in the record shows that on the ledger, they merely had the item of almost a $1,000,000 of income from Skycoach or agency.

That’s all the ledger showed us that they furnishes.

Now, you can’t trace through there anything like that, what the activity was.

But if you’ll take the coupon who has have it issued to John Jones, by Skycoach, for carriage on either Currie Transport or Great Lakes Airlines and then find that that man was on the document for the particular transport of Currie when he was listed for Great Lakes Airline, you can show just what was happening all the way through and who has had the power to control the activity and decide that this whole thing would flow together just as like one — one of the number of cogs in an entire operation under the control of the Hermann’s as contended for by the Board.

And it’s only by their records in their possession that those things can be demonstrated unless you try to go out and find all passengers all over the United States which would be a place of an unreasonable burden upon an administrative agency.

Earl Warren:

Mr. Ginsburg.

Roland E. Ginsburg:

May it please the Court.

Roland E. Ginsburg:

I am constrained to correct the Solicitor General on the point the Chief Justice just inquired about.

The documents who called for were not limited to two months or to any period.

On page 145 of the record, the final order of the District Court appears.

There were various subpoenas issued in this proceeding.

There were 10 subpoenas, all of which are the subject to this appeal.

And each subpoena, well, the period of them ranges from 34 to 38 months.

And when each witness was called upon, and the dates were staggered, he was to produce all of the documents for the 34 or 38-month period as the case may be.It was not broken up two months at a time.

I just wanted to set the record straight on that matter, and it appears on page 145 of the record.

Felix Frankfurter:

Would you be good enough to state what you conceive to be the decision of the Court of Appeals there?

Roland E. Ginsburg:

Yes, Your Honor.

If I may preface my remark with one statement, it is our position that the District Court did not decide this case, did not decide the legal issues in this case.

And it is our — our view as the Court of Appeals simply required the District Court to decide the case, to decide the legal issues in the case.

Felix Frankfurter:

But it gave them — gave them some instructions or criteria —

Roland E. Ginsburg:

Yes, yes sir.

Felix Frankfurter:

— by which they’ve decided.

Roland E. Ginsburg:

Yes, yes Mr. Justice.

Felix Frankfurter:

What was it?

Roland E. Ginsburg:

The — the discussion in the Court of Appeals opinion with regard to the enforcement —

Felix Frankfurter:

May I ask you, the District Court didn’t decide.

How could it be appealed?

Roland E. Ginsburg:

Well, the District Court made a decision, Your Honor, but if the District Court did not decide what the Court of Appeals conceive to be the legal issues in the case, and we agree with the Court of Appeals.

Now, in the Court of Appeals decision, there’s a great deal of discussion at the inception of the decision as to how an administrative subpoena case, enforcement case, should be decided.

And the Court goes into a great deal of discussion as to how it conceives this should be done.

It is our position and this is all dictum.

Because at page 173 of the record, the Court says, makes a reference to the inspection in the District Court.

And then it says, “Since the Court proceeded along the proper lines in the first instance, all difficulties will now be resolved by the Court passing upon designated judicial issues, and those issues are essentially four.

The first one is possession and control by the person of the documents, by the person subpoenaed.”

We will acknowledge and we did acknowledge in this case, if the person subpoenaed had possession and control of the documents with one exception which I’ll come to.

Accordingly, this is dictum.

If we don’t assert this defense and the Court decides it, I believe that to be dictum and accordingly, I don’t think it’s controlling.

Roland E. Ginsburg:

The other matter —

Would you be contented by what you call dictum as all eliminated from this opinion in case you went back?

Roland E. Ginsburg:

Yes we would, Your Honor, yes we would.

And I think what was troubling the Court — on the Court of Appeals —

Felix Frankfurter:

Back for what, bring back for what?

Roland E. Ginsburg:

I beg your pardon?

Felix Frankfurter:

Bring back on what issue?

You said you’d be contented if it went back to the District Court.

What would the District Court be doing if it went back, from your point of view?

Roland E. Ginsburg:

We feel that on remand, the District Court should decide the issues in this case, the legal issues that we raised and they are relevance and materiality of the documents called for, burdensomeness or oppressiveness of the demand and whether or not the rights of privacy of individuals have been invaded by reason of the demand for personal income tax returns.

We asserted, sir, no — no objection on the issue of possession or control.

Am I right in understanding this to be your position that you made this objection before the District Court?

The District Court says, “Gentlemen, go and see what you can do.”

You come back, the Government is unsatisfied, the District Court then enforces the subpoena without more, is that what happened?

Roland E. Ginsburg:

That is essentially what happened.

However, I would like to go under a little detail on that if I may, Mr. Justice, and that is, during the course of this inspection, I wanted to point out that the outset of this argument how tremendously broad these subpoenas are and how many irrelevant, obviously irrelevant documents are called for and I hope I’ll have an opportunity to do that.

Now, the inspection was ordered by the District Court because it couldn’t — it was a — it’s a very difficult case to decide.

Obviously, the Board is entitled to some of these documents.

And just as obviously, the — the Board is asked for too many documents, many of which have no relation to the case.

Accordingly, the District Court did a very reasonable thing and ordered an inspection, not just to see if the thing would — could be worked out, to see if the Board could go out and inspect all of the documents.

And thereby, limit the subpoenas to the documents they needed, instead of requiring these respondents to assume this tremendous burden of producing unnecessary documents.

We’ve alleged and I think shown that we — that the respondents couldn’t have conducted their business at that time, their businesses, without these documents.

And the — the Court of Appeals found there were truck loads of records, comprehensive and practically every book paper or record over concerning the respondent company, that’s almost a quote.

Now, that was the way the issue was faced by the District Court.

And on remand, we feel the District Court should decide whether or not the documents are material, because the District Court didn’t decide that.

The District Court said, after laying the subpoenas along side the charges of the complaint, the District Court can’t say whether or not — can’t say that any of the documents are immaterial or irrelevant without examining the documents themselves which this Court has not called upon to do at this time.

The District Court did not decide that a single document was relevant or material.

And that we submit the District Court did not even decide that — that any of them were irrelevant or immaterial, that they were not irrelevant and not immaterial.

It excuses double negative —

Earl Warren:

Well, is it your position that the Court must look at those documents —

Roland E. Ginsburg:

No, Your Honor.

Earl Warren:

— to determine materiality?

Roland E. Ginsburg:

That is not our position.

Earl Warren:

How are they to determine materiality?

Roland E. Ginsburg:

Well, Your Honor, if I —

Earl Warren:

If they haven’t done it already?

Roland E. Ginsburg:

They haven’t done it.

If I may make a reference to — to one demand and contained and it’s common to all of the subpoenas served upon all of the corporate and partnership respondents.

That is the demand for all general ledgers, all subsidiary ledgers, all supporting documents of the books to the entries in these ledgers, and all vouchers, and all invoices and journals.

Now, here, we have some busy companies.

They have a lot paper work.

They buy just like any company.

There’s a lot of routine purchases and sales.

They buy a typewriter.

They buy a paper.

They buy supplies.

They bag parts for their maintenance division.

I don’t know if this Court is aware that every voucher and invoice in connection with everyone of these myriad purchases has to be produced.

Now, obviously, the vast overwhelming majority of these documents have no relation to the issues in this case.

This is what the Court of Appeals saw.

They could see that most of them were just routine transact — most of the documents related to routine transactions which the Board wasn’t even interested in.

And during the course of this inspection, I wanted to get —

Felix Frankfurter:

I don’t understand that.

I don’t understand that remark.

Roland E. Ginsburg:

I beg your pardon.

Felix Frankfurter:

I don’t — I do not understand what you — I mean, I do not get the significance of what — of what you’ve just said.

The Board says, “We want these documents,” and you just said the Board wasn’t interested in them.

Roland E. Ginsburg:

I claim that the Board —

Felix Frankfurter:

I’m saying, I don’t understand —

Roland E. Ginsburg:

— really isn’t interested in them.

Roland E. Ginsburg:

They’ve asked for them.

Felix Frankfurter:

How do you know that?

Roland E. Ginsburg:

I will have to — I’m assuming it, Your Honor.

Felix Frankfurter:

Well I don’t — how can we decide this case on your assumption that of course a whole category of document is something the Board really isn’t interested in?

Roland E. Ginsburg:

Well, Your Honor —

Felix Frankfurter:

How can I understand that?

Roland E. Ginsburg:

If Your Honor please, what interest would the Court — would the Board have in documents relating to the purchase of supplies to the purchase of an article for a — a plane part —

Felix Frankfurter:

Do you think I can understand —

Roland E. Ginsburg:

— or insurances?

Felix Frankfurter:

— that just by your — by — by force of the question that you put?

Roland E. Ginsburg:

I don’t know, Your Honor, but it seems —

Felix Frankfurter:

(Voice Overlap)

Roland E. Ginsburg:

— clear to me that there’s no — that it has no relevance to the issues in this case, whatsoever.

Earl Warren:

Well, the Solicitor General pointed out one — one thing in his argument that might carry you rather deeply into the books of the subsidiaries.

He said that the books of the — the principle corporations, as I understood him, showed what their revenues were plus blank dollars from their — from their agency.

Roland E. Ginsburg:

Yes.

Earl Warren:

Now, it doesn’t say who they were, how they were, what the nature of the transaction was, whether it was — whether those transactions were for the purpose of carrying on a continuous service or — or whatever it might be.

Now, that of course would — would carry — might carry them into a great many avenues of the business, both of the main corporation and the subsidiaries, but how is the judge going to have to do that unless it fairly appears to him that — that those scenes aren’t necessary in order to find out what the operation has been between all these people.

Roland E. Ginsburg:

Well, if Your Honor please, there’s more than one answer to this question.

Earl Warren:

Well, just give me the main one.

Roland E. Ginsburg:

Well, Your Honor, the — the papers of the so-called subsidiaries, all the books, papers, records and documents were subpoenaed also in this proceeding.

However, they are not part of this appeal.

They’re nevertheless had been subpoenaed.

The similar subpoena has been issued to all of the ticket agencies.

The second point in Mrs. Hermann’s affidavit, she states that all of these record —

Earl Warren:

Do you mean, you — you complied with that part of the —

Roland E. Ginsburg:

No Your Honor.

That case —

Earl Warren:

What do you mean, (Voice Overlap) —

Roland E. Ginsburg:

There was another enforcement case.

Roland E. Ginsburg:

Well, these other subpoenas were not made a part of this subpoena enforcement case.

They were made a part of a separate subpoena enforcement case, and we entered in to a stipulation with the U.S. Attorney in Los Angeles to the effect that we would be governed with respect to those subpoenas by the decision in this case.

Earl Warren:

Well, that doesn’t approve that they don’t need them and that doesn’t prove anything about the materiality of it, seems to me.

Roland E. Ginsburg:

I — I thought Your Honor was questioning how they were going to obtain this information and that is the source from which they could obtain the books of the — of the ticket agencies.

Another answer to — to your question is that in Mrs. Hermann’s affidavit, she alleges that all of the information they need or all of the — all of the information they — they are now claiming that they couldn’t find from the books they examined were available in the form of supporting documents which they had.

Earl Warren:

Well, is the —

Roland E. Ginsburg:

Which were available for inspection by which no request was made for.

That’s in —

Earl Warren:

You mean the Commission and the Court bound by that affidavit?

Roland E. Ginsburg:

No, Your Honor, but it’s not contradicted.

And that there might be some conflict — I don’t believe there is any conflict.

Mrs. Hermann said that the investigators did not ask for these documents, but such documents were available and they would have been glad to make them available.

My point here is that in my opinion, many of the documents called for have no bearing upon the case.

I’ll take another specific example if I may.

The subpoenas directed to the corporate and partnership respondents called for all personnel and payroll records for a period of 38 months and all vouchers.

Now, Great Lakes Airlines has an extensive maintenance division.

It’s established in this record.

They have many mechanics and I’ve seen out they’re climbing around those airplanes.

They pay this man every week.

Every one of those vouchers has to be produced.

We don’t see any — any conceivable relevance.

I can’t assume that for the Board, but we don’t believe that they are relevant.

And we don’t believe that the District Court passed upon this — this type of issue.

Earl Warren:

Well, the Solicitor General as I understood him pointed out that that those things were — were necessary in order perhaps to be able to show that this was more or less one operation.

And was that — all these various activities were — were designed to accomplish one such purpose.

Roland E. Ginsburg:

Oh, I don’t believe that the –the vouchers used in connection with paying a mechanic has any bearing on whether or not these companies are one and the same.

We of course disputed the —

Earl Warren:

Well, the —

Roland E. Ginsburg:

— we’ve denied that they are.

Earl Warren:

Well, all the way stretches — this kept in the books might have very — very important bearing on it.

Earl Warren:

I don’t say it does, but —

Roland E. Ginsburg:

I understand.

Earl Warren:

— but I — I just don’t know.

And is there anything in the record here that would — would enable us to establish in our own minds that those things could not have had any such bearing?

Roland E. Ginsburg:

Well, I can’t conceive of any relationship between them.

That’s all I can say that we should —

Earl Warren:

Well, should we just take your assumption or should we take (Voice Overlap) —

Roland E. Ginsburg:

Well, I think the Court should consider in itself in relation to the issues in the case.

I don’t think it should accept my assumption.

Earl Warren:

Shouldn’t we give some consideration to the — the knowledge of the — of the Board as to Commission, as to its jurisdiction, and his needs, and the opinion of the District Court as to the relevancy of those matters?

Roland E. Ginsburg:

Well, I don’t think the District Court passed on these issues.

Charles E. Whittaker:

Mr. Ginsburg —

Roland E. Ginsburg:

And — and that is the — I beg your pardon?

Charles E. Whittaker:

Mr. Ginsburg —

Roland E. Ginsburg:

Yes, Your Honor?

Charles E. Whittaker:

When the subpoenas were served on you, asking for general categories of information, and you went it to the Judge and asked to have the subpoenas resisting, did you there file any formal objection to anything like a book keep of records with respect to mechanics, wages and things of that kind which you claimed were not material or relevant and asked him to exclude those?

Roland E. Ginsburg:

Your Honor, we did in this way.

We filed objections and a return to the order tho show cause in which we stated that many of the documents were immaterial and irrelevant.

And in an argument before the Court, we attempted to point out the items, which we felt were not relevant.

And we also attempted to show the Court the affect of requiring these respondents to produce the documents that there — the man was for hundreds of — literally, hundreds of thousands of documents, many of which were in our opinion, needed.

And this is what the Court of Appeals, the Court of Appeals agreed with us.

The Court of Appeals founded the District Court haven’t in effect decided the case.

I perhaps could try one more item here, to try to impress the Court with the fact that the Board is asked for too many documents in connection with these ticket coupons that the Solicitor General has referred to.

We have established here that there is a demand for no less than 90,000 ticket coupons to prove these ticketing practices and in the so-called relationship between the parties.

We don’t believe that 90,000 ticket coupons are necessary.

I can’t, again, assume this for the Board.

The Board after these many documents, we came in and said, this — this amount to 90,000 ticket coupons.

I think there was an issue for the Court to decide whether or not they needed 90,000 ticket coupons, conceding of course that the Boards — the Board has an argument hereto.

They probably need some of them, undoubtedly they do.

But do you need 90,000 coupons to prove a violation or even a continuing violation?

Roland E. Ginsburg:

I don’t think so.

Felix Frankfurter:

How — would — would you indicate what you think will happen if this order is reverse?

It has to go back to the District Court, doesn’t it?

Roland E. Ginsburg:

Yes, Your Honor.

Felix Frankfurter:

Now, what would you urge when the case goes back on the assumption, needless to say a hypothetical the starting point?

All of these cases reversed and remanded that District Court to further act.

What course do you grant to pursue that or to call about that?

Roland E. Ginsburg:

Well, Your Honors, Your Honor, I believe, first of all, that the requirement with respect to each document, the materiality and relevancy of each document should be dropped.

I don’t think the Board should be required to prove the relevancy and materiality of each single document.

Felix Frankfurter:

But Judge Fee says it does?

Roland E. Ginsburg:

I think he does, yes Your Honor.

Felix Frankfurter:

All right.

Roland E. Ginsburg:

And I don’t think that the Board should have to.

Felix Frankfurter:

I think that proceeding is concerned of the — of the Government.

Roland E. Ginsburg:

Pardon?

Felix Frankfurter:

As I understood the Solicitor General’s argument that is his chief concern.

Roland E. Ginsburg:

That is.

Felix Frankfurter:

That the Court of Appeals is asking the Board to justify the relevance of every piece of paper —

Roland E. Ginsburg:

Well, I don’t —

Felix Frankfurter:

— for every item of evidence, which he has.

Roland E. Ginsburg:

I don’t think that — I think that’s an unreasonable burden.

Felix Frankfurter:

Very well.

Roland E. Ginsburg:

And we concede that truly.

However, I think that they should prove the relevance of all the documents that are subpoenaed, not piece by piece, but by groups, but by categories.

Felix Frankfurter:

Well, is there any to do that?

Roland E. Ginsburg:

And, perhaps they are.

Felix Frankfurter:

Well, I mean, the subpoena calls for reference.

You then — you then — then they didn’t bring enforced.

I should think they must make out a case no matter how sketchy, putting in evidence in the complaint on which they’re inquiring, in which they are engaged.

To that end, we made this call upon the defendants, whatever they are called —

Roland E. Ginsburg:

Respondents.

Felix Frankfurter:

— they have respondent too, respondents.

And so, we ask the process of this Court to make him deliver.

And then, the judge looks at the categories and judges it, relates it to the frame of the complaint, on the basis — and yes, this seems to be a subject matter and a period that are relevant, is that right?

Would he —

Roland E. Ginsburg:

I think he should do that, I don’t think he has done it.

Earl Warren:

What part of that has he not done?

Roland E. Ginsburg:

I don’t think he is determined that the documents are relevant and material.

Felix Frankfurter:

That’s his order.

His order is —

Roland E. Ginsburg:

I don’t believe it does, Your Honor.

Felix Frankfurter:

It’s in the terms, right?

Roland E. Ginsburg:

It does not sir.

It says, “I cannot say whether or not any of the documents are immaterial or irrelevant.”

He doesn’t even say — he doesn’t say that they are relevant.

He said, “I can’t say whether they’re irrelevant.”

That’s what the Court — District Court has said, and that’s what the Court of Appeals said — in that regard, the Court of Appeals said the District Court didn’t decide the legal issues.

They never — the District Court never talked about the burden imposed upon the respondents which was very considerable.

Felix Frankfurter:

What we’re reviewing is orders of Courts, not talk.

Now, the order of Judge Hall on page 144 sets forth what it is that he’s ordering your clients to do.

And I do not understand how he could have ordered them to do that, except on the presupposition that that — that the documents, which were ordered to be produced, are documents relevant to this litigation.

I don’t understand how a judge can make an order, otherwise than with that presupposition.

Roland E. Ginsburg:

That — I don’t think we have to assume in this case, Mr. Justice Frankfurter.

We can turn to the previous page 143 and see what the Court said about it.

Felix Frankfurter:

What are you saying?

Roland E. Ginsburg:

That’s the — that’s the language that I’ve been reading.

It’s the first paragraph on page 143.

He said, “I can’t say.

Therefore, I’m going to — that I’m going to enforce the subpoenas.”

Felix Frankfurter:

And what’s the matter with that, if a Board having the duty of making inquiries?

Felix Frankfurter:

He says, “Documents 1, 2, 3, or 4 or the class of documents is relevant.

And the judge says, “I can take care of it.”

Why do the Boards claim that it’s relevant, sufficiently can they —

Roland E. Ginsburg:

I don’t — I don’t think that’s discharging judicial power.

I think that this is a judicial decision to make.

Felix Frankfurter:

Well, he said it’s a judicial decision that it isn’t relevant.

If it isn’t irrelevant, then it’s something indictment be called for.

Roland E. Ginsburg:

I hate to be —

Felix Frankfurter:

Were there neutral documents in this world?

Roland E. Ginsburg:

Pardon me, sir?

Felix Frankfurter:

You — you are suggesting that their Board is really — the agencies are really calling for a lot of neutral documents.

Roland E. Ginsburg:

They’re calling for a lot of documents that don’t have any relation to the case, that’s what I’m saying.

Felix Frankfurter:

But, that is assuming that the Board would ask for a lot of document that they don’t think are relevant.

Roland E. Ginsburg:

If they really thought about it, I don’t think they would.

In the course of this examination, Mr. Justice Frankfurter, they couldn’t even scratch the surface to six representatives out there for six or seven days.

There were so many thousands of documents.

Felix Frankfurter:

Well, now, you divulge.

Suppose this goes back, and said they mustn’t justify.

They need not to justify document by document.

Roland E. Ginsburg:

Yes, Your Honor.

Felix Frankfurter:

Are you debarred from saying to Judge Hall that he will simply or to simply this case, “Your Honor, we are being asked to produce the following category and we like to be heard while they are not relevant.”

Would you be debarred from doing that?

Roland E. Ginsburg:

I don’t believe so.

I think we could — we could argue that —

Harold Burton:

Well, is that —

Roland E. Ginsburg:

— and I think we should be —

Harold Burton:

— (Voice Overlap).

Is — isn’t that the way to bring up this question.

Roland E. Ginsburg:

That is the way we brought it up.

Harold Burton:

No, I don’t want — if the subpoena calls for a category of interims, generally common, relevant, then upon the enforcement duty, if you want to isolate certain particular once that you say, either are the — not burdensome or not relevant then institutionally the formally point goes out.

Roland E. Ginsburg:

We — I believe we did formally point them, out Your Honor.

Harold Burton:

And you say the Court did not rule on that request?

Roland E. Ginsburg:

It did not rule.

Instead of that, the Court said, “I can’t conclude that — and at this time, that any are immaterial or irrelevant set — ”

Earl Warren:

That finding did not — those are irrelevant?

Roland E. Ginsburg:

What the Court said Your Honor was, “Bring them all in here.

If you could bring them in here then I might be able to decide, but I can’t decide now.

I can’t say they are immaterial or irrelevant.”

Felix Frankfurter:

Well, he may be intellectually — he may be saying something that intellectually has required evidence.

But as a judge, he can’t say that, merely because you say, “These have nothing to do.”

And if the Board would be thinking about it, how can a judge, District Judge of Court of Appeals of this Court say, “The Board didn’t think about it and they just harem-scarem, asked a lot of documents.”

How can we make such a — how can that be a starting point?

Roland E. Ginsburg:

Well, that is what the Court of Appeals found here, Your Honor.

I think —

Felix Frankfurter:

But how did — could the Court of Appeals know that it’s harem-scarem?

Roland E. Ginsburg:

Because the Court of Appeals examined the subpoenas carefully.

Felix Frankfurter:

But would that — but would that tell him?

Roland E. Ginsburg:

I think it’s apparent from the face of the subpoenas.

Felix Frankfurter:

But if it —

Roland E. Ginsburg:

And we have the issues in them.

They have administered of complaint and they compare the two, I think it’s apparent.

Felix Frankfurter:

I can understand that the subpoena called for the production of the 11th Edition of the Encyclopedia Britannica because that’s a particularly interesting point.

And the Court could say it well.

Roland E. Ginsburg:

It is.

Felix Frankfurter:

Maybe so, but that’s so esoteric to claim but you better prove it.

But how a Court of its own could take judicial notice, category of documents that have some relation to the business, have no relation with the complaint, they get the scriptures as far as I’m concerned.

Roland E. Ginsburg:

The Court of Appeals said in effect, “You’ve asked for all the documents that these companies have.”

All the documents are not necessary in this proceeding.

I should point this out.

Both Courts that looked to this case felt immediately, that there should be an inspection.

Roland E. Ginsburg:

An inspection is what this case calls for, because the categories are so broad and call for so many documents —

Hugo L. Black:

What do you mean by inspection?

Roland E. Ginsburg:

An inspection of these very same documents with the opportunity to photograph the documents, to copy the documents, to know which documents are necessary.

I say this is not efficient administration to call for all documents.

Felix Frankfurter:

I can’t understand the position by you that so vast an amount of the books and documents are of concern or abstracted for a time to cancel the coming of business.

There should be appropriate controls, so that your business can go on while the Boards could also be going on.

I can understand all of that.

I can understand the rich of years that — according to the Solicitor General.

Do you say that cut it down unless you make up with the — I can understand all of those particulars.

I cannot understand how from the face of a subpoena, anybody can say it has nothing to do with the case, unless it’s a clear thing, kind of the foolish things that I have put about the 11th Edition of the Encyclopedia Britannica.

Roland E. Ginsburg:

Well —

Felix Frankfurter:

Because, anybody who has had ever anything to do with inquiring of this sort, and you well know the riches of relevance are not apparent on the face of a paper.

Roland E. Ginsburg:

May I address the question to you, Mr. Justice?

I — I wonder if — when all of the vouchers and invoices of a busy company are called for, it cannot be assumed that every one of them is relevant and material to define issues in an administrative enforcement case.

Felix Frankfurter:

I — I can’t answer your question.

I can answer a suggestion.

I can agree with the suggestion that all of the vouchers over a period, even though they’d be dead vouchers, the historic documents that a business may have demand, but turning to a document, that’s whatever eight or three months — three years or two years old.

I can understand all of those accommodations that should be made for the reasonable comment of a business and the duty of a governmental agent, all that I can apprehend and understand and sympathize with.

I cannot understand any aspect determination of what the categories are or not relevant?

Roland E. Ginsburg:

I believe my time — Mr. Justice Frankfurter —

Hugo L. Black:

May I ask you a question?

Roland E. Ginsburg:

Yes, Your Honor.

Hugo L. Black:

The time is not — did you offer to prove or once they’re approved to come in, in truckloads of these papers that were — you said truckload, was there any proof of that?

Roland E. Ginsburg:

Your Honor, we did estimate the number of documents in various categories.

In the category that are — I have been discussing with Mr. Justice Frankfurter we estimated 200,000 documents.

Hugo L. Black:

How many documents in all?

Roland E. Ginsburg:

In connection with the tickets, there were 90,000.

Hugo L. Black:

They’re what?

Roland E. Ginsburg:

90,000 tickets — ticket coupons.

Hugo L. Black:

What else?

Roland E. Ginsburg:

25,000 cancelled checks.

That is 315,000 so far.

Hugo L. Black:

315,000.

Roland E. Ginsburg:

And with respect to the remainder, we did not estimate the calls for a number.

Hugo L. Black:

But you said — you said something about truckloads.

Roland E. Ginsburg:

That was what — that was the statement of the Court of Appeals.

We did — we did show this Your Honor in — that we showed the number of employees.

We showed that there was a great deal of paperwork in connection with operations of these airlines and a great deal of documentation, we showed both.

Hugo L. Black:

You said something about inspection, which interested me.

Roland E. Ginsburg:

Yes sir.

Hugo L. Black:

Is your — was your hearing then a kind of an informal nature before Judge Hall?

Roland E. Ginsburg:

Yes, Your Honor, it was.

The first hearing —

Hugo L. Black:

It’s something what could be done —

Roland E. Ginsburg:

That’s right.

Hugo L. Black:

— and what’s the best way to ask him.

Roland E. Ginsburg:

At the first hearing Your Honor, Judge Hall, after reading the complaint and examining the subpoenas, his first action was to say, “As each counsel of the State of — its respective position.”

Hugo L. Black:

Did you — did you ever suggest or did the Government suggest, rather than bring all those documents of the truck, that they might be made available for them to look at in your office?

Roland E. Ginsburg:

Yes, we —

Hugo L. Black:

Who made that suggestion?

Roland E. Ginsburg:

Well, the Court initially.

Hugo L. Black:

Well, what — did you object to that?

Roland E. Ginsburg:

No we did not, neither — neither side objected to that.

Hugo L. Black:

Neither side objected?

Roland E. Ginsburg:

I beg your pardon?

Hugo L. Black:

Neither side objected?

Roland E. Ginsburg:

Neither side objected.

Hugo L. Black:

Have you ever objected to that?

Roland E. Ginsburg:

Never, and we don’t object to it.

Hugo L. Black:

Well, if — if the Government didn’t object, what — what reason, why was that not carried out for us to avoid that?

Roland E. Ginsburg:

Well, what happened there Your Honor was there was an inspection which lasted about seven days.

Hugo L. Black:

Who made the inspection and where?

Roland E. Ginsburg:

It was made at the facilities of the respondents in Burbank, California.

Hugo L. Black:

They made it the company’s office.

Roland E. Ginsburg:

Pardon?

Hugo L. Black:

Company’s office?

Roland E. Ginsburg:

That’s right Your Honor, and their facilities.

Hugo L. Black:

And did you stop it or did anybody stop it?

Roland E. Ginsburg:

No, Your Honor.

The first hearing, I think it was around April 7th or 6th, and the inspection continued from April 7 to April 15, 1955.

At the conclusion, the — the Court asked the Government, “How long would it take to inspect these documents?”

And they said, “We can be done by such — by the 18th of April.”

In the 18th, the Government came in with affidavits without notice to us which asserted that we have not permitted a full inspection, that they have not been able to see some documents.

Hugo L. Black:

Did you deny that?

Roland E. Ginsburg:

We subsequently denied it.

And we convict —

Hugo L. Black:

Did you have a trial — did you have a trial on that?

Roland E. Ginsburg:

We — we didn’t have a trial on it, Mr. Justice Black.

Hugo L. Black:

Were you — were you afforded an opportunity to try out that issue?

Roland E. Ginsburg:

We — we submitted the affidavits and we apparently convinced the District Court that we had complied with it, because he permitted us to reargue the case on the legal issues.

Hugo L. Black:

But why did the — with that situation that way then, why did the arraignment which seems to me frequently would be much better than a lawsuit to go in and all the way up here?

Why did not the arrangement proceed as it had begun?

Roland E. Ginsburg:

Your Honor, we were at all times willing to continue an inspection, and we remained —

Hugo L. Black:

You have that with you in all times.

Roland E. Ginsburg:

At all times.We have never objected to it.

Hugo L. Black:

(Voice Overlap) the Government to send its representatives and to see, and then it could show relevancy, is that your argument?

Roland E. Ginsburg:

That’s right.

They are at liberty to copy photograph or photograph the document.

Hugo L. Black:

Whether if you had that attitude, I don’t quite understand why that matter went on to this point if the Government was willing to do that.

Roland E. Ginsburg:

I don’t believe — I don’t know that the Government was willing.

Hugo L. Black:

Was there any indication that the Government couldn’t do that as easily as it could to have them brought up to some — what office were they to be brought to?

Roland E. Ginsburg:

To the Federal Building in Los Angeles where the hearing was conducted, to Downtown Los Angeles.

Hugo L. Black:

But did they — they were not to be taken to their office?

Roland E. Ginsburg:

No.

Hugo L. Black:

Would they happen to have their representatives at the Federal Building to investigate the paper?

Roland E. Ginsburg:

Yes.

Hugo L. Black:

And it is a question then so far as that’s concerned whether they are — inspectors would have to work at your office or work at the Federal Building?

Roland E. Ginsburg:

That really — it gets almost onto that point.

We are satisfied if they come to our facilities and examine the documents and offer an evidence, make photographs and copies and offer an evidence such of those documents as they wish.

Hugo L. Black:

Did you indicate your willingness to let them photostat anything you have?

Roland E. Ginsburg:

Yes, Your Honor, and I might add that we are required too under Section 487 (e) of the Civil Aeronautics Act.

Hugo L. Black:

How far is it from your office to the Federal Building?

Roland E. Ginsburg:

I would — I would think it’s about 15 miles, Your Honor, approximately 15 miles.

Felix Frankfurter:

Do you mean they could — they could photostat this body of documents that you regard on the case irrelevant?

Roland E. Ginsburg:

If they wish to.

As long as it — we’re not required to track them all down to the Federal Building.

We have no objection because we know or we feel we know that they don’t want them.

Felix Frankfurter:

Is that what the decision is now, getting down to or that they must come to you or that the amount must come to Mr. Hermann or vice versa?

Roland E. Ginsburg:

Well, I must admit it does.

However, that’s a serious problem with respect to these people.

Felix Frankfurter:

But I’m not saying it isn’t.

I just want —

Roland E. Ginsburg:

These were current documents at the time that we needed.

Felix Frankfurter:

I’m not saying it isn’t and I’ve already expressed sympathy with appropriate regulations, not to dislocate a business, and at the same time, to satisfy the requirements of the law for inquiry.

I’m just wondering if that’s what the case is getting down to.

Roland E. Ginsburg:

That is what it should get down to, Your Honor, in my opinion.

Felix Frankfurter:

Not what it should or doesn’t on the basis of the decision of the Court.

Roland E. Ginsburg:

As far as the respondents are concerned, it’s down to that, Your Honor.

Earl Warren:

Mr. Ginsburg, there are some individuals also who were defendants, did they all offer to do the same thing?

Roland E. Ginsburg:

They haven’t, Your Honor.

Earl Warren:

I beg your pardon?

Roland E. Ginsburg:

They have not.

Earl Warren:

They have not.

Roland E. Ginsburg:

They have not.

Earl Warren:

But wouldn’t they interplay between their records and — and the company, be rather essential in working out this problem?

Roland E. Ginsburg:

I think it would be helpful to the Board.

Earl Warren:

Well, how could the Government — how could the Government know then if that one defendant permitted these books to be seen and the other one wouldn’t?

How — how could they — how could they do this work that you think would be so reasonable and working out what they actually need in the trial?

Roland E. Ginsburg:

I can only say this, Your Honor, that these — I think you’re referring to the advertising agency in the two accounting firms.

I think that they — if the respondent, the — the principle respondents here, the airlines were to indicate to them that they have no objection to the inspection of these documents that they would permit it.

Felix Frankfurter:

Are these people before us?

Do you represent (Voice Overlap) —

Roland E. Ginsburg:

Yes, Your Honor, they are the respondents.

Felix Frankfurter:

You represent them all?

Roland E. Ginsburg:

Yes I do.

Felix Frankfurter:

And you can speak for them all?

Roland E. Ginsburg:

I — I’ve never spoken to these individuals about the inspection.

I can’t speak for the airline companies.

I can name the companies.

I can speak for Great Lakes Airlines, Currie Transport, Air International, Nevada Aero Trades, Great Lakes Agency, we will permit an inspection.

As to the independent auditors and advertising agencies, I’ve never spoken to them on the subject, and I couldn’t agree.

I would be glad to contact them in anyway I could to make the –the results of that that my questioning available to the Court.

Thank you.

Earl Warren:

Mr. Solicitor General.

Felix Frankfurter:

Mr. Solicitor, would it be asking too much if at the outset you would state what — what comments you have to make in view of the candid statement by Mr. Ginsburg as to — articulates concession that Judge Fee’s ruling, that each individual document must be justified, is not — is not supported by him and it is rejected by him.

What are the effects of that on your case?

What do you think this Court ought to do?

J. Lee Rankin:

Well, if — the difficulty I have with that is whether he’s still urging that the District Court has to examine as to the various documents individually as to relevancy or materiality or whether he concedes that the general categories, if they’re generally found to be irrelevant.

And it seems to me that under the complaint and the nature of these documents, it can be fairly assumed that they’re relevant on the face of it unless —

Felix Frankfurter:

They’re two different questions.

J. Lee Rankin:

— unless they come forth.

Felix Frankfurter:

There are two — two different questions.

J. Lee Rankin:

Yes.

Felix Frankfurter:

I thought he was very clear in saying, he does not stand, he rejects the suggestion that the individual document must be just — the relevance of it must be justified.

I understood him to say explicitly, categories alone, their relevance must be contested.

The second part of your — the second question that you have just indicated, namely, whether the fact that the Board asked for them presumptively makes them relevant and that he does not agree with it.

J. Lee Rankin:

I would not want to urge that the fact the Board asked for them alone, but in the context of their complaint.

And the nature of the documents, it seems to me that there is a showing of relevancy and materiality under the motions of the Court that unless there is some showing that this particular document, affirmatively made by the respondents, could not possibly contribute anything to this lawsuit.

That the —

Felix Frankfurter:

But you wouldn’t disagree with him that he — that you go to Court and ask for enforcement, to say class one document.

He may interpose the events of class one document cannot be relevant.

At the very nature of the complaint, they want to disclose as to the description of class one documents.

The class one documents of obvious error.

You wouldn’t cut off that opportunity for the respondents.

J. Lee Rankin:

Not at all.

Felix Frankfurter:

To make such a representation and have the Court rule on it.

J. Lee Rankin:

I would not.

Earl Warren:

General, what — what is your position in regard to the statement of Mr. Ginsburg that this gets down practically to the — the proposition as to whether the record should come to you or you should go to the records?

J. Lee Rankin:

My position on behalf of the Government is that it’s not correct.

The Government does not ask that it be brought to them as distinguished from going to their records.

The only difficulty is we tried the first one.

And what do we get?

We found that they produced no tickets, not a single one out of 90,000.

They produced no advertising material which was requested.

They didn’t produce the stock certificate.

They didn’t produce the minutes of the pilots’ meeting that was specifically requested.

They produced no records of the Great Lakes Airlines Agency, and they produced no correspondence.

We found correspondence in the hands of some of the Skycoach agencies that couldn’t possibly but have some kind of a counterpart in these other corporations.

But we go out there and we spend 10 days at the Court’s suggestion which is entirely reasonable to try to solve this by going out and inspect it.

And what do we find?

J. Lee Rankin:

We just played tag with it.

The — some of the records are in Attorneys Keatinge and so forth hands, others in their advertising agent’s hands, and others in the hands of their accountants.

And then, we can’t find — those aren’t produced.

And finally, the Court got sick of it too.

We — we don’t insist on behalf of the Government that you — they’ve got to bring them to the post office building and the Court was trying to provide a reasonable time by staggering the production and try to have the inspection, but nothing worked, and I couldn’t see why it wouldn’t.

This is a very serious situation for these people.

They’ve got one cease-and-desist order against the Great Lakes Airlines for operating as an irregular carrier.

And now, this is a question of whether a whole license be revoked.

Now, they don’t have any right to have any ownership of any kind in Nevada Aero Trades, or any of these Skycoach agencies, or any of these other operations if they’re connected with some other independent airlines.

And Currie is what they — they claim they’re independent of Currie.

Although, the Board claims that they just operate altogether measure like that.

Now, if we can show by the tickets that after they got the cease-and-desist back there, against one agency, they proceed to operate to Currie and operate them all together, and show how they — they transferred employees back and forth.

They paid them out of this pocket and out of that pocket, and how everything is operated altogether, like he’s charged in the complaint and that they took control of these various companies when in — without any approval of CAB in violation of the statute.

Then, no Court would hesitate if the Board finds that their licenses should be revoked in a cease-and-desist ordered against them, which is a very serious thing, because they’re making lot of money of this operation.

No Court would hold that should not be sustained.

But if we have it for one week or two weeks or three weeks or some month, and the Court might say, “Well, what about the rest?

Did they quit today?”

So, I think, on the face of it, that we’re entitled — administrative agencies, I urge you, are entitled to go into these things on the presumption within reasonable limits that they’re trying to protect the public interest.

And when you charge like they have that here’s the whole scheme of a number of cards working together, that these people who put together after they got one cease-and-desist already, to operate together and defeat of the whole purpose of this Act of Congress, it’s time that it’d be looked at with the idea of giving the Board a chance to prove the things necessary to establish the facts so that we won’t have any trouble of the facts, and then we can apply the law to those facts.

Felix Frankfurter:

What you’re saying is, therefore, at least, the inference I draw from what you say is that when Judge Hall said by laying the subpoena alongside the charges in the complaint, this Court cannot say, “these are irrelevant.”

He’s simply using a double negative to set forth an affirmative, namely they are in the negative.

J. Lee Rankin:

That’s the way we read it.

Thank you.