¶1Peirson M. Hall, U. S. Atty., and Leo V. Silverstein, Asst. U. S. Atty., both of Los Angeles, Cal., for petitioner.
¶2Charles W. Cradick, George K. French, and Roy E. Jackson, all of Los Angeles, Cal., and H. W. Glensor, of San Francisco, Cal., for respondent.
¶3Before WILBUR and GARRECHT, Circuit Judges, and NORCROSS, District Judge.
¶5The petitioner was an authorized and acting special agent in charge of the Division of Investigation in the United States Department of Justice. By a subpoena duces tecum issued out of the District Court of the United States for the Southern District of California, Central" Division, in Special Site Sign Company, a Corporation, v. Foster & Kleiser Company, a Corporation, et al., petitioner was required to produce certain records and documents in his possession as such agent of the Department of Justice. He appeared in response to the subpoena and declined to produce the documents called for by the subpoena duces tecum on the ground that by section 65 of Rules and Regulations of the Division of Investigation of the United States Department of Justice, approved and promulgated by the Attorney General, he was prohibited from producing the records, and that in addition he had communicated with the Attorney General of the United States and had been informed by him “that the documents sought are part of the official and confidential records of the Department, that it is against public policy for the Department to produce any part of the documents obtained confidentially when the purpose for which documents are sought is for the 'furtherance of private litigation.” The petitioner refused to submit such documents for examinatioA in the civil case in which the subpoena was issued upon the ground that he was prohibited by the departmental rule from so doing, that he was also prohibited by the special order of the Attorney General from producing papers, and that it was against public policy to produce such documents because they were °part of the confidential and official files of the Division of Investigation of the United States Department of Justice.
¶6The trial court adjudged the petitioner guilty of contempt of court “in failing to answer whether or not he has certain records in his possession and in declining to produce same if they are in his possession, and directed that he stand committed to the custody of .the United States Marshal until such time as he complies with the order of the court.”
¶7It appears from the subpoena duces tecum attached to the petition for writ of habeas corpus and from the return of the marshal that the documents demanded are copies of correspondence and contracts and other private documents Of Foster & Kleiser Company which were made by the Bureau of Investigation of the Department of Justice in connection with the institution and prosecution of a suit by the United States government tq enjoin the continuance of activities in violation of the Sherman AntiTrust Law (15 USCA §§ 1-7, 15 note), and that the action in which such informa*923tion is desired by the parties is a private action brought to recover the damages and penalty imposed by that act. The claim of the Special Site Sign Company which secured the subpoena duces tecum is that the private records and correspondence of Foster & Kleiser Company have been destroyed, and for that reason they need to use the copies of such instruments made by the agents of the government in the course of its investigation.
¶8It will be assumed, as determined by the trial judge, that these documents are material evidence in the case in which their production is sought and that the sole question involved herein is whether or not the petitioner, a subordinate in the Department of Justice of the United States government, may be compelled to produce documentary evidence in the custody of the Department.
¶9The statute of the United States, 5 USCA § 22, Rev. St. § 161 (see footnote1), authorizes the Attorney General to make rules concernjpg the custody of the papers and documents of the Department. In pursuance of this authority, the Attorney General has promulgated the rule (No. 65) as shown in the footnote.2 This regulation has the force of law, and the court had no jurisdiction or power to punish an officer for conforming to that law. Boske v. Comingore, 177 U. S. 459, 20 S. Ct. 701, 706, 44 L. Ed. 846; Caha v. U. S., 152 U. S. 221, 14 S. Ct. 513, 38 L. Ed. 415; In re Valecia Condensed Milk Co. (C. C. A.) 240 F. 310.
¶10In Boske v. Comingore, supra, the Supreme Court of the United States sustained a rule of the Treasury Department with relation to the custody of documents, etc., similar to the rule adopted by the Attorney General with reference to the records of his de*924partment. It was there held that such a regulation was not inconsistent with law, was valid and binding upon the courts, and in effect held that under such a regulation the head of the department became the exclusive custodian of the records. In that regard the court said:
“In our opinion the Secretary [of the Treasury], under the regulations as to the custody, use, and preservation of the records, papers, and property appertaining to the business of his department, may take from a subordinate, such as a collector, all discretion as to permitting the records in his custody to be used for any other purpose than the collection of the revenue, and reserve for his own determination all matters of that character.”
¶11In view of the fact that under these regulations the documents, although physically in the possession of the witness, are in law in the custody of the Attorney General, and he is prohibited from producing them by the lawful rule of the Department, the court had no power or authority to compel him to do so. Whether or not the Attorney General could be compelled to produce such records in response to a subpoena or to testify concerning them is a matter which is not involved. In that regard, see 25 Op. Atty. Gen. page 326.
¶12The petitioner is discharged from custody.