of the Act dealing with the inspection of aliens, in the light of the Congressional intent to extend the subpoena power to matters material and relevant to the enforcement of each and every provision of the Act, including Section 340 relating to revocation of naturalization.
Secondly, petitioner's counsel contends that the present subpoena provision, Section 235(a), should not be construed so as to require the attendance and testimony of the party himself. The basis of the contention is that Section 235(a) uses the word 'witnesses' and a party does not fall within that category. This contention, we think, is likewise not well founded.
Section 16, 8 U.S.C. § 152, in effect prior to the enactment of Section 235(a), 8 U.S.C.A. § 1225(a), likewise used the word 'witnesses' and the cases decided thereunder held that said word was sufficiently broad to include the party (the alien) himself. Loufakis v. United States, 3 Cir., 81 F.2d 966; United States v. Parson, D.C., 22 F.Supp. 149, reversed on other grounds but sustained as to the aforementioned proposition in Graham v. United States, 9 Cir., 99 F.2d 746; In re Estes, D.C., 86 F.Supp. 769 and Yanish v. Wixon, D.C., 81 F.Supp. 499. Thus, the same construction, we feel, should be placed on the present statute.
It is argued by counsel for petitioner that the strict limitation on the scope of administrative investigations, Jones v. Securities and Exchange Comm., 298 U.S. 1, 56 S. Ct. 654, 80 L. Ed. 1015, supports his contention that the authority to subpoena 'witnesses' does not include the authority to subpoena the party himself. The answer to this argument is that a more liberal view was adopted by the Court in 1950 in the case of United States v. Morton Salt Company, 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401. That case shows that the power to conduct administrative investigations and incidental thereto the power to issue subpoenas to compel appearance and testimony in connection with those investigations were not limited to the same extent that judicial inquiries were limited. The adoption of this more liberal view was undoubtedly the result of increased experience with administrative investigations.
The other argument of petitioner's counsel is that if Congress wanted to grant the Service power to subpoena the party himself it could have done so by using the word 'persons' instead of the word 'witnesses'. See Defense Production Act of 1950, 50 U.S.C.A.Appendix, § 2061 et seq. In this connection we point to the fact that the subpoena provisions of the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq., and the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., contain the word 'witnesses', and it can hardly be contended that with respect to the enforcement of those Acts the right of subpoena does not flow against the person under investigation. Further, it is our thought that the failure of Congress to use the word 'persons' in the subpoena provision of the Act of 1952 does not foreclose a finding that 'witnesses', the word used by Congress, includes the party himself. Indeed, as has been seen above, because of the construction placed on the prior subpoena provision, 8 U.S.C. 152, and because of the now more liberal view with respect to the scope of administrative investigations, the word 'witnesses' as used in the Act of 1952 includes the party himself.
For reasons stated herein the motion to quash and set aside the subpoena commanding the petitioner to appear and testify in a matter concerning himself will be denied.
An order pursuant to the foregoing opinion will be entered.
In closing, it is noted that the opinion herein does not affect the right of the petitioner at the time his testimony is sought to be taken before the immigration officer to assert any right he may have under the Fifth Amendment to the Federal Constitution.
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