SEPTEMBER 15, 1942.
Subpoena duces tecum. Before Judge Humphries. Fulton superior court. May 11, 1942.
A. L. Henson, Clifford Walker, and Otis L. Hathcock, for plaintiff. Boykin Boykin, for defendant.
The provision of paragraph (g) of section 11 of the Georgia unemployment compensation act, approved March 29, 1937 (Ga. L. 1937, p. 806), empowering the labor commissioner of Georgia to require each employing unit to enter on its work records such information as the commissioner desires, and authorizing the commissioner and his agents to inspect and copy such records at any reasonable time and as often as necessary, provides a means whereby the commissioner and his agents have full knowledge at all times of every detail of the work records of each employing unit. The authority to issue a subpoena duces tecum under paragraph (h) of section 11 does not embrace authority to issue such subpoena directed to an employer to require the production of his work records upon an inquiry or investigation by the bureau to determine the liability or non-liability of such employer under the unemployment compensation act. Where a subpoena duces tecum was issued by the bureau to an employer, a resident of Haralson County, directing him to produce records at an investigation and inquiry being conducted in Fulton County for the purpose of determining the liability or non-liability of such employer under the act, such subpoena was unauthorized by law, and the party to whom it was directed need not obey the same; and where, upon failure to respond to such subpoena, the bureau petitioned the superior court of Fulton County to require such employer to obey this subpoena, and the employer filed a special plea to the jurisdiction of the court, the judgment rendered thereon, denying the relief prayed for and holding that the court was without jurisdiction of the person of the employer, was not erroneous.
No. 14270. SEPTEMBER 15, 1942.
The Georgia unemployment compensation act, approved March 29, 1937, provides in section 6 for the filing of claims for benefits, initial determination of such claims, appeals, board of review, procedure, appeals to courts, and court review. Paragraph (g) of said section, relating to witness fees, is as follows: "Witnesses subpoenaed pursuant to this section shall be allowed fees at a rate fixed by the commissioner. Such fees shall be deemed a part of the expense of administering this act." Section 11 of the act provides for the administration, and paragraph (g) of that section provides, in part, as follows: "Each employing unit shall keep true and accurate work records, containing such information as the commissioner may prescribe. Such records shall be open to inspection and be subject to being copied by the commissioner or his authorized representatives at any reasonable time and as often as may be necessary." Paragraph (h) of section 11 empowers the commissioner, the chairman of an appeal tribunal, the members of the board of review, and their duly authorized representatives to "issue subpoenas to compel the attendance of witnesses and production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act." Paragraph (i) of section 11 provides that, "In case of contumacy by, or refusal to obey a subpoena issued to any person, any court of this State within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the commissioner, the Board of Review, the chairman of an appeal tribunal, or any duly authorized representative of any of them, shall have jurisdiction to issue to such person an order requiring such person to appear" as directed by the subpoena, and that any such failure may be punished by the superior court as a contempt, by a fine of not less than $200 or imprisonment for not longer than sixty days, or both.
On September 11, 1941, W. D. Dickerson, as director of the unemployment division of the Georgia Bureau of Unemployment Compensation, issued what purports to be a subpoena duces tecum, addressed to Mr. J. J. Mangham and stating as its subject, "J. J. Mangham, Bremen, Georgia," and "J. J. Mangham, T/A Commercial and Exchange Bank, Bremen, Georgia," which recited that in the general offices of the Unemployment Compensation Bureau, in the State office building in Atlanta, Fulton County, Georgia, the director under express authority from the commissioner of labor was "carrying on an inquiry and making an investigation as to the liability or non-liability of the employing units named above [J. J. Mangham and J. J. Mangham T/A Commercial and Exchange Bank] to said bureau as employers under the terms of said act; that, under authority of the unemployment compensation act and specifically under authority of the Code, §§ 38-901, 38-902, J. J. Mangham is required to appear before said director in the general offices of the bureau, in the City of Atlanta, Fulton County, Georgia, on January 6, 1942, and from day to day until the inquiry and investigation is completed, and to bring with him "all wage records, pay-roll, and any and all other records and documentary evidence of employment of workers by, and of services rendered to, the employing units stated above within the State of Georgia, showing wages and remuneration earned, paid, or payable, during the calendar years 1940 and 1941 to date."
W. D. Dickerson, acting in his official capacity as director of the unemployment division of the Georgia Bureau of Unemployment Compensation and as the duly authorized representative of the Commissioner of Labor of the State of Georgia, brought a petition to the superior court of Fulton County, alleging, that in the discharge of his official duties he entered into an inquiry within Fulton County as to the eligibility to benefits of employees of J. J. Mangham and as to the status of J. J. Mangham as an employer under the terms of the unemployment compensation law as amended; that in the prosecution of such inquiry and investigation it became necessary to obtain information as to the number of persons employed and the amount of wages paid by J. J. Mangham within the State of Georgia for the years 1940 and 1941; that this information was peculiarly and fully within the knowledge of Mangham and as recorded in the wage records, pay-rolls, and other documentary evidence of employment of workers in the possession and control of J. J. Mangham; that the act requires Mangham to make a full and complete report of such employment, and, upon request, to submit to the bureau for examination all of the said wage records, pay-rolls, and documentary evidence of employment; that the request of the bureau for the submission of said documents was refused by J. J. Mangham; that thereupon the petitioner issued and had served upon J. J. Mangham a subpoena duces tecum, commanding him to attend as a witness before said inquiry and investigation, and to produce all of said wage records, pay-rolls, and other documentary evidence of employment; and that Mangham refused to obey said subpoena duces tecum. A copy of the subpoena duces tecum was attached to the petition. The prayer was that the court issue an order requiring J. J. Mangham to appear and produce the records as directed by the subpoena.
Upon presentation of the petition to Honorable Hugh M. Dorsey, judge of the superior court of Fulton County, he issued an order directing that the petition be filed, that J. J. Mangham obey the subpoena duces tecum, and that Mangham be served with a copy of the petition and the order. An entry of service was made by C. P. Massey, sheriff of Haralson County. Mangham filed a special appearance, challenging the jurisdiction of the superior court of Fulton County, in which it was alleged, that J. J. Mangham is, and was at the time the petition was filed, a resident of Haralson County; that all of his business and employment was and had been in Haralson County; that he had neither resided in nor transacted business in Fulton County; that he was within the jurisdiction of the superior court of Haralson County, and not the jurisdiction of the superior court of Fulton County; that the petition of the bureau showed that the superior court had no jurisdiction of the person of J. J. Mangham; that the judge was without jurisdiction or authority of law to issue the order thereon; and that the sheriff of Haralson County had no legal right to serve the petition and order, there being no prayer for a second original and none having issued, and if a second original had issued without prayer therefor it would have been invalid. The plea assailed paragraphs (a), (h), and (i) of section 11 of the Georgia unemployment compensation law, upon the ground that they are violative of numerous constitutional provisions, among which are article 6, section 16, paragraph 6, of the State constitution (Code, § 2-4306), requiring that all civil cases be tried in the county where the defendant resides; and article 1, section 1, paragraph 3 (§ 2-103), which provides that no person shall be deprived of life, liberty, or property, except by due process of law. The prayer was that the petition and order be dismissed, and that the plea to the jurisdiction be sustained.
An order was entered by Judge Dorsey, directing that this special plea be filed, and that the plaintiff show cause why the plea to the jurisdiction should not be sustained, revoking the previous order directing Mangham to obey the subpoena duces tecum issued by the bureau, and directing that service of the special plea be made upon the plaintiff by the sheriff of Fulton County. An entry of service by a deputy sheriff of Fulton County appears thereon. The plea to the jurisdiction was heard by Hon. John D. Humphries, judge of the superior court of Fulton County; and on May 11, 1942, judgment was rendered, holding that the superior court of Fulton County had no jurisdiction of the person of J. J. Mangham, it appearing that Mangham was a resident of Haralson County; and denying the prayer of the petitioner that an order of the court be granted requiring J. J. Mangham to appear as directed by the subpoena duces tecum. To this judgment Dickerson as director of the unemployment division of the Georgia Bureau of Unemployment Compensation, and as the duly authorized representative of the Commissioner of Labor of Georgia, excepted.
The record does not support the statement made in the plaintiff's brief that this case involves a claim of compensation. The instrument issued by the bureau, directed to J. J. Mangham, and designated as a subpoena duces tecum, states that the inquiry and investigation that is being carried on is "as to the liability or non-liability of the employing units named above [J. J. Mangham, Bremen, Georgia, and J. J. Mangham, T/A Commercial and Exchange Bank, Bremen, Georgia], to said bureau as employers under the terms of said act." After directing J. J. Mangham to appear and produce designated records and documents, the subpoena duces tecum asserts that the "said records and documents [are] to be used as evidence in said inquiry and investigation." Therefore the statement in the plaintiff's brief that the inquiry and investigation involved a claim dispute, or any matter other than that specifically designated in the subpoena duces tecum, is unsupported by the record, and is in the outset of this opinion rejected. Our decision is confined to the subject of the inquiry and investigation of the bureau as stated in the subpoena duces tecum, since that is the basis upon which the entire case is founded. It is important that our decision be thus restricted to the case as made, because there might be a material difference in the powers of the bureau under the law if the subject of the inquiry and investigation be expanded beyond that stated in the subpoena duces tecum, to embrace the further subject of a disputed claim. Section 6 of the act relates to claims for benefits, and paragraph (g) of that section provides for the payment of fees to witnesses subpoenaed pursuant to that section. It thus appears that for witnesses appearing in response to subpoena issued under paragraph (h) of section 11 in connection with a disputed claim, the law provides for compensation, and it is probable that they may be required to respond to such a subpoena without regard to county lines. But there is no provision in the Georgia unemployment compensation act as amended for the payment of witnesses in connection with an inquiry or investigation to determine the liability or non-liability of an employer to the bureau as an employer under the act. There is no provision in the general law for the payment of witnesses residing out of the county where a civil suit is tried or an inquiry and investigation is made by this bureau. Witnesses in civil cases residing in the county are allowed a per diem under the Code, § 38-1501. Non-resident witnesses for the State in criminal cases, when the subpoena is signed by the clerk and the solicitor-general, are required to attend trial, but are paid a per diem and traveling expenses from the county treasury, as provided in the Code, §§ 38-1901 to 38-1903; but a subpoena to a witness residing out of the county, not signed by both the clerk and the solicitor-general, is void, and a witness responding to it is not entitled to any compensation. Commissioners of Floyd County v. Black, 65 Ga. 384; Harris v. Early County, 96 Ga. 186 ( 22 S.E. 704). A defendant in a criminal case can not compel a witness residing out of the county to appear and testify, unless in the discretion of the judge he is allowed a subpoena for that purpose, which must be signed by the clerk and the solicitor-general, in which case a witness is required to appear and is allowed the same compensation from the county treasury as that allowed non-resident State's witnesses. Code, § 38-1905; Thompson v. State, 138 Ga. 267 ( 75 S.E. 357). Thus it is clear that the law does not contemplate that a person who is not a party to the case and who has no interest therein shall be compelled by any process to expend his time and money in travel, for the purpose of giving testimony or evidence in behalf of others, without being compensated for such time and expense. Indeed, to thus take one's time and expense of travel without compensating therefor would constitute taking of property without due process, and when taken by the State or its agency would be for public use without paying therefor, in violation of provisions of the State constitution.
An examination of the Georgia unemployment compensation act, and particularly section 11 thereof, discloses that the Commissioner of Labor and all of his authorized agents are given wide and sweeping powers, with authority to direct, inspect, and copy the private records of every person in this State having one or more employees. Paragraph (g) of section 11 empowers the commissioner to require the employer to make such entries on his records as the commissioner may desire; and it further requires that such records be open to the inspection of the commissioner or his authorized agents, and that he or they shall have the right to make copies of such records "at any reasonable time and as often as may be necessary." This right and power of the commissioner and his agents is ample to acquaint the bureau at all times with every detail that the records of such employer will disclose. Commensurate with these rights, there is here imposed upon the commissioner and his authorized representatives a legal duty to thus deal with the records of the employer; and when this duty is performed, there is no justification for requiring the employer to produce the original records at such time and place as the commissioner and his representatives may choose, for the purpose of enabling them to determine from the records the liability or non-liability of such employer under the act. No information could possibly be obtained by the production of the original records that was not already in the minds of the officials of the bureau — gained from inspection, and in the files of that bureau — obtained by making copies, if those officials have performed their duties under the law. It will not be presumed that the General Assembly of this State intended by this enactment to empower the labor commissioner or his representatives to impose upon private individuals sacrifices and inconveniences which serve no purpose and contribute nothing to the full and proper administration of the law. If under the terms of the act the employer can be required in this case to transport his original records in Haralson County to an inquiry and investigation conducted by the bureau in Fulton County, such employer can by virtue of the same authority be compelled an unlimited number of times to transport his records to such inquiry and investigation by the bureau held in any county of the State, all for the purpose of supplying the bureau with information which it already has, relating to the subject of liability or non-liability of the employer under the act. There is neither law nor necessity for the authority here asserted and sought to be exercised by the bureau. The general law authorizing the issuance of a subpoena duces tecum (Code, § 38-901) contemplates that this subpoena issue only to persons not parties to a case, and also that a case made by the assertion in pleadings of a fact be pending in court as a condition precedent to the issuance of this subpoena. Appropriate language as to the necessity of this condition precedent is found in Ex parte Calhoun, 87 Ga. 359, 367 ( 13 S.E. 694), where it was said: "It could be used to bring in evidence to show that an alleged copy was a true copy; that is, it could be used to obtain evidence as contradistinguished from discovery. To verify what is alleged is a legitimate use of the subpoena; but without anything for verification being alleged, to employ it for ascertaining what is to be verified, and at the same time for verifying the matter thus discovered, is giving it a double operation, the first half of which is illegitimate. The difference is that between making a statement and then fishing with the subpoena for proof of it, and fishing in silence for proof, treating the proof itself as supplying the statement to be established." Here the bureau neither asserts that the employing units are subject or that they are not subject to the act. In view of the language above quoted from a decision of this court, which the legislature is presumed to have known, it must be held that it was not the legislative intent that a subpoena duces tecum be employed by the commissioner and other agents of the bureau to compel the production of the employer's records at an inquiry or investigation of the officials of the bureau for the purpose of determining the liability or non-liability of such employer under the act. In such an inquiry the strict rules of evidence have no application; and the knowledge of the bureau officials, regardless of how obtained, whether by inspection of the employer's records or copies thereof, constitutes a basis for decision that is equally as valid and legal as it would have been if based upon the original records of the employer. For the reasons stated, the commissioner and his authorized agents were without lawful authority to issue the subpoena duces tecum here involved, and the superior court of Fulton County had no jurisdiction of the person of J. J. Mangham, a resident of Haralson County. It follows that the judgment excepted to must be
Affirmed. All the Justices concur.