SOUTHERN PACIFIC CO v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 1, California.

SOUTHERN PACIFIC CO. v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

Civ. 12397

Decided: August 23, 1939

W.I. Gilbert, of Los Angeles, for petitioner. J.H. O'Connor, Co. Counsel, and Douglas De Coster, Deputy Co. Counsel, both of Los Angeles, Dunn & Sturgeon, of Monrovia, and Betts & Garrison, of Los Angeles, for respondent.

This matter came on for hearing before this court on August 21, 1939. The only return made to the alternative writ of prohibition which was issued herein was a general demurrer, no other return having been made. According to the allegations of the petition, the Superior Court of Los Angeles County has a rule requiring an order of the presiding judge thereof before a subpoena duces tecum can be issued by the clerk of said court, unless the cause in which the subpoena is issued is actually on trial, in which case the order may be issued by the trial judge. However, regardless of whether such rule is, or is not, in force, it would be a violation of section 19, article I, of the Constitution of California, to-wit:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches, shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized” to allow a ministerial officer to pass upon the sufficiency of the affidavit required by section 1985 of the Code of Civil Procedure before a subpoena duces tecum may be issued. This would require a judicial determination as to the sufficiency of the affidavit before the court would have power to issue a subpoena duces tecum, and therefore the order of the court is a prerequisite to the issuance of a subpoena duces tecum.

The alternative writ of prohibition heretofore issued by this court is made peremptory, such writ to issue forthwith.

PER CURIAM.