In re Holman

REYNOLDS, P. J., (after stating the facts).— There are ten points made by learned counsel for petitioner: First, that the city of St. Louis has no power to levy a license tax in proportion to the gross receipts of a gas company. Second, the city has no power to levy, in addition to taxes now paid, a license tax on the Laclede Gas Light Company alone, which is not levied on all other corporations making a like use of the' streets. Third, that the five per cent, now paid upon gross receipts “by the electric companies of the city using its streets,” (italics ours) is not a license tax but a contract obligation. Fourth, that the city cannot levy a license tax on the Laclede Gas Light Company alone — 88 — whicli is not levied on other manufacturers and merchants. Fifth, that the Board of Aldermen, being the legislative department of the city, cannot value property for the purpose of taxation. Sixth, the Board of Aldermen being incompetent for the reasons above stated either to impose the tax contemplated or to value the property or business of the Laclede Gas Light Company for such purpose, is without jurisdiction to institute the investigation contemplated. Seventh, the resolution under which the investigation is proposed to be conducted is not ¿n act or ordinance of the Board of Aldermen and cannot confer* authority upon any committee to do what is proposed. Eighth, under the Charter of the city the Board of Aldermen has no power or jurisdiction to conduct an investigation into the rates, service, affairs, etc., of a public utility because by such Charter authority to conduct such investigation is committed to the department of public utilities. Ninth, “the Board of Aldermen has no general jurisdiction to conduct a searchlight investigation into private or corporate affairs merely because it is clothed with the police power or may propose to enact some sort of legislation. All the information which it pretends to seek is now afforded by or may be procured through the instrumentalities now clothed by law with general supervision and control over all public utilities of the city.” Tenth, and finally, the search and seizure undertaken by the committee is unreasonable within the meaning of the Constitution of the State. We will not undertake to follow learned counsel for the petitioner in their elaborate and learned argument in support of these various propositions. In our view of this case, the greater part of them are not here involved. This case is a proceeding under the provisions of the Constitution and statutes relating to habeas corpus, and in such a case our inquiry is limited to the single question of the jurisdiction of the Board of Aldermen of the city of St. Louis, and of its committee [Henry v. Henkel, 235 U. S. 219.] — 89 — Tlie charter provisions which we have set ont very fully are the measure and scope both of that jurisdiction and of the power of the city and its legislative body, the Board of Aldermen,, and the preamble and resolution and ordinance referred to fully set out the purpose of the inquiry, as well as the authority conferred upon the committee. Our court, in In re Conrades, 112 Mo. App. 21, 85 S. W. 150, had before it a case in which the petitioner, there arrested under a warrant issued by authority of the House of Delegates for failure to obey a subpoena commanding him to appear and testify before a committee of the House, challenged the power of the committee to compel his attendance and to give testimony before it, principally upon the ground that the committee was proceeding outside of the powers conferred on it by the resolution of the House of Delegates, in undertaking to compel the petitioner to produce the papers and books of a private manufacturing corporation, of which he was an officer. Judge Goode, who wrote the opinion of our court, that opinion delivered in 1904, has so thoroughly compiled the authorities up to that date relative to the powers of the Municipal Assembly, or one branch of it, to enter into investigations of matters concerning which it was proposed to legislate, that it would be a work of supererogation for us to repeat or even give a resume of them here. "We refer to that opinion for these authorities as then applicable to the powers of the Municipal Assembly. That Municipal Assembly, as created under our old Charter, passed out of existence, and as will be seen by reference to section 1 of article 4 of our present Charter, which we have set out in full, the legislative power of the city, subject to the limitations of the Charter, is now vested in the Board of Aldermen. We have also set out the powers of the city as prescribed and defined by its Charter. As demonstrated by our court, speaking through Judge Goode in In re Conrades, supra, the power of the — 90 — city to make inquiry of matters within its jurisdiction and in aid of proposed legislation, cannot be questioned. On the dissent of one of the judges of this court, the Conrades case was certified to the Supreme Court and the decision of the latter is reported Ex parte Conrades, 185 Mo. 411, 85 S. W. 160. There the Supreme Court held (l. c. 429) that in the view of the case which that court took, “it is sufficient at this time to say, that upon the face of the return filed hy respondent herein, it is shown that the petitioner was unlawfully restrained of his liberty, since the committee appointed by the House had no authority, under and by virtue of the resolutions pleaded (italics ours), to compel the production for inspection and examination of the private hooks and papers of a private business corporation of the city.” It is there further said, that in so determining, many of the questions raised and discussed hy counsel (and it might also have said, in the opinion of Judge Goode, above referred to), became unnecessary for consideration. That is to say, it passed all the other questions in the case without specifically determining them. Most certainly it did not disapprove of any of them. On the contrary, the whole spirit of the decision of the Supreme- Court tends to sustain the yiew expressed for our court by Judge Goode, as to the power of the Municipal Assembly to inquire into matters on which it proposed to legislate. An examination of the eases and authorities quoted and cited by Judge Goode shows that his conclusion as to the powers of a body, such as the Municipal Assembly, or now, such as the present Board of Aldermen, to examine and inquire into matters concerning which it proposes to legislate, is .fully sustained throughout the country. We know and are referred to no opinions later than 1904, when our court decided "the Conrades case, which in any way disturb or overturn the law as there announced hy Judge Goode, speaking for our court. See, also, In re Dunn, 9 Mo. App. 255, where the same subject is ably discussed hy Judge Lewis then of our court. — 91 — A learned discussion of the power of a hoard of equalization to compel the attendance of a witness and elicit testimony, will he found in In re Sanford, 236 Mo. 665, 139 S. W. 376. • In the Conrades case the resolution appointing the committee and authorizing it to examine persons and compel the production of boohs and papers empowered the committee “to fully and carefully investigate the boohs, records and accounts in the several departments of the city, ivherein returns are made of taxes.” (Italics ours). Of this our Supreme Court said (l. c. 430): “You will search in vain to' find, in this resolution a direction or -a command by the .House, to its committee, appointed (either in direct words employed, or by any fair inference that may be drawn therefrom), to investigate the private affairs of any private person, or class of persons, or corporations. All the power the committee herein had was such as it derived from the above resolution. That was its charter of authority, its delegation of power, the extent of and the limitations upon its duties; and so the question of the power and authority of the House of Delegates, in the matter of investigations of the character in question, so much discussed by counsel, is of no concern now, since the petitioner here is held for contempt for his refusal to obey the orders of the committee, and not those of the House of Delegates. If by the direct terms of this resolution, or from the reasonable inferences that flow from them, the commit-fee was not empowered to investigate into the private affairs of business corporations of the city (such as the one petitioner controlled and had the management of), then whether or not the House of Delegates had or had not authority to authorize such an investigation, or whether the House may or may not have had the authority to itself have conducted such an examination, is not involved here, and we must deal now alone with the committee, and consider of its authority and power in the premises under the resolution by which it derived its birth.” — 92 — The court accordingly held that, no matter what object may have been set out in the preamble, the power given the committee by the resolution itself was limited to the examination into the books, records and accounts in the several departments of the city wherein returns are made of taxes. It is further there said by cur Supreme Court (l. c. 432): “The authority to send for persons and papers and to issue subpoenas and subpoenas duces tecum, implies at most, only the right to compel the attendance of the witness, and the production of books and papers in his possession, necessary to a lawful inquiry, within the authority of the acting body that may be germane and pertinent to the subject of investigation. Limited in its delegated authority to the particular duty of investigating the books, etc., of the departments of the city wherein returns are made of taxes, the committee exceeded that authority when it sought to compel the petitioner to give testimony, or to produce books and papers for its inspection, that in the very nature of things could not be considered pertinent or germane to its work in hand, or to the delusive pretense, suggested by counsel, of gathering information for remedial legislation in the contemplation of the House of Delegates. ’ ’ Our court had held.in In re Conrades, supra (l. c. 27), that, “Living a fair interpretation to the resolution, the intention of the house was to have the matter of the assessment and collection of personal and license taxes investigated with a view to adopting legislative measures to secure more satisfactory results in collecting the revenues of the city,” and so held that by necessary implication the committee, under the resolution, could go into an examination of the books of private corporations. This, the Supreme Court held error, and that is the only proposition upon which the decision of our court was disapproved. The situation presented here, however, is entirely different from that present in the Conrades case, upon which the decision in that case by the Supreme Court turned. We have italicized those parts of the preamble — 93 — and resolution which we think conclusively demonstrate the difference between the two cases, and the difference in the authorization to that committee and to the one here concerned. Without repeating all of the preamble and resolution, it is here sufficient to refer to a part. The preamble sets out that the Board of Aldermen “is considering the matter of legislating on the subject of a levy and collection of a reasonable annual license tax by the city of St. Louis ’from every person, copartnership, association and corporation engaged in the business of making and vending gas for artificial lighting and heating and distributing the same by means of pipes or conduits laid in the public streets, highways and alleys within the city.” We have seen that the power of levying and collecting a reasonable annual license tax by the city of St. Louis is expressly granted by its charter. So here is the power to legislate. With the power to legislate follows the right to investigate through its committee, in order to intelligently legislate. That, the eases cited by Judge Goode in In re Conrados show. The coiiimittee to be appointed, was authorized, among other things, to investigate the cost of production and manufacture of gas _,by persons and corporations making and distributing that article in the city of St. Louis', etc., “so that a correct determination may be made by the Board of Aldermen of the cost of the production and manufacture and the cost of distribution of such gas and the cost of such service to the users of samé,” etc., “in order that an equitable and proper’per cent, may be arrived at to be fixed as an annual license tax on such business.” Investigation along other but like lines is also authorized to be made by the committee, as will appear by reading the resolution in full, as we have set it out. For 'the purposes of our decision it is sufficient to refer to the first and main purposes and subjects set out. So it will be seen how widely this differs in its general as well as specific authorization to the committee from the resolution in the Conrades case. The petitioner hero is the president of the Laclede Gas Light Company and beyond all doubt is the person — 94 — who, in the first instance, can at least aid the committee in the attainment of the object for which it was appointed. There is no question here presented of the production of books and papers; that is not within the. subpoena served upon the petitioner. The examination is of him personally, presumably ás an officer of the Laclede Gas Light Company, and it is to be assumed, in the absence of a showing to the contrary, that the questions which will be asked him by the committee, will be within the scope of the committee’s authority to investigate and not of such a character as to infringe upon- any constitutional right of the petitioner. It is confessed in the return that the Laclede Gas Light Company is the only corporation within the city of St. Louis exercising within that city the franchise of furnishing gas for lighting, etc., so that it is a class in itself, as the answer practically avers, and that answer disclaims a monopoly, and expressly admits that the Laclede Gas Light Company has none. So it appears beyond question- that no other person or corporation, other than the Laclede Gas Light Company, of which the petitioner is the president, is engaged in that business in the city of St Louis. Hence the point made' by learned counsel, that the city cannot levy á license tax on the Laclede Gas Light Company alone, which is not levied on- other manufacturers -and merchants, falls to the ground. There is no other company, manufacturer or merchant in the city of St. Louis engaged in the business of furnishing gas for lighting and heating than the Laclede Gas Light Company. Our Constitution provides that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. [Article 10, section 3, Constitution.] Our Supreme Court, in City of St. Louis v. United Railways Co., 263 Mo. 387, 174 S. W. 78, has distinctly held that a different, and distinct license tax may ;be imposed upon any one class of business. - Two cases are referred to by learned counsel for petitioner in support of their proposition that the city cannot levy a license tax on the Laclede Gas Light Com — 95 — pany alone, which is not levied on other manufacturers and merchants, namely, City of Kansas City v. Grush, 151 Mo. 128, 52 S. W. 286, and State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S. W. 627. These cases afford no support whatever for this contention. There the parties concerned applying for a license or prosecuted for carrying on business without a license, were single individuals within a class, and because the ordinances referred to attempted to make a distinction among members of the same class, the ordinances were held void. That is far from being this case. In short, we hold that this investigation was entirely within the power of the Board of Aldermen in the first place and within their power to commit the investigation to a committee, and that full power was conferred upon the committee. The investigation was for a lawful purpose, for the purpose of securing information on which the Board of Aldermen, representing the legislative power of the city, could act with.intelligence and with a knowledge of all the facts. The statement that the Board of Aldermen has in its possession, in the . form of documents, the information now sought to be elicited through its committee, is not pertinent. It may be that such documents do not satisfactorily cover the matters on which information is sought; or, the Board may desire to test the statements in such documents through witnesses or otherwise. It is argued that if petitioner can be called before the committee, every citizen engaged in purely private business may be subjected to like proceedings. This proposed inquiry is not aimed at the conduct of a private business. If it was, it might fall within part of what is held in the Dunn case, supra. Furthermore, that argument goes too far; for if petitioner, as president of a public service corporation, cannot be called on to testify concerning its dealings with the public, then no one in like circumstances can be called and the door is closed to the Board in its efforts to legislate intelligently on many public- matters. — 96 — The fact that the Laclede Gas Light Company is now paying a lieen.je tax is immaterial,- it is in the power of the Municipal Assembly to increase or diminish that. Nor is it true that the proposed license tax, if one is imposed, violates any provisions of the Constitution of the State, requiring uniformity of taxation, or is double taxation. We think these propositions are answered by the decision of our Supreme Court in the case of City of St. Louis v. United Railways Co., supra, l. c. 441 and 445, and by that of the Supreme Court of the United States in City of St. Louis v. United Railways Co., 210 U. S. 266. It goes without saying that the power of the Board of Aldermen ánd of its committee is not to be exercised arbitrarily, capriciously or oppressively, nor without due regard to rights guaranteed by our Constitution. It is to be assumed that when the petitioner appears before the committee of the Board of Aldermen to give testimony in the matter referred to the committee by that Board, that that' committee will confine itself in its line of examination to matters within its jurisdiction. We are here without any information of the questions to be asked petitioner, nor even of the precise line of inquiry the committee may pursue as to him. It is argued that the matters to be inquired of are exclusively within the power of the Board of Public Utilities of the city of St. Louis, and of the Public Service Commission of the State. The.Board of Public Utilities (see article XIII, section 10, of the City Charter), while given general supervision over the maintenance, etc., and assessment of rates and charges of all public utilities, has no power to fix or enforce a license tax and is directly ordered to “cause to be executed all ordinances regulating the construction . . . maintenance ... or rates of public utilities operating under franchises, licenses or permits, or compelling extensions of facilities for sue]) service.” Here it distinctly appears that this Board of Public1 Service is to operate under ordinances and no — 97 — power to fix licenses is vested in that Board. All that is with the Board of Aldermen. We look in vain for any authority lodged in the Public Service Commission, created by Act of March 17, 1913 (Laws 1913, p. 556) to fix the license tax to be imposed on any public service corporation. Article IV of that Act (page 602, sections 67 to 85), which contains the provisions as to gas companies and the like, certainly confers no such power, and while by those sections visitorial powers, as we may call them, axe lodged in that body, we find nothing to hold them exclusive of the xight of the city to make like inquiry when necessary for the purpose of carrying out its lawful objects and powers to regulate license laws by ordinance. Nor is there any intimation given by our Supreme Court in State ex rel. Missouri Southern R. R. Co. v. Public Service Commission, 259 Mo. 704, 168 S. W. 1156, of any power in that commission to exercise legislative or judicial powers, the Supreme Court, on the contrary, there holding that it had no such powers. It may fix rates, but has nothing to do with the taxation of public ‘service corporations, nor power to license them to do business.^ We have set out the charter provisions and so much of the ordinance as is germane to the matter, probably with unnecessary particularity, but we do so because, in our judgment, a reading of them shows ample authority in the Board of Aldermen, though its committee, to conduct the proposed investigation. It may be that no ordinance will ever be passed imposing the license tax upon the Laclede G-as Light Company, or if it is now paying one or a like tax, that it will be increased; it may even-be decreased. Whether the ordinance then passed is valid or invalid, is not a question that we can now determine. The power of the court only extends to determine the validity of an ordinance, after it has been enacted. [Pitman v. Drabelle, 267 Mo. 78, 183 S. W. 1055.] As before remarked we do not consider it necessary to follow learned counsel for. petitioner through all the — 98 — lines of their contention as to why this petitioner should not appear and present himself as a witness under the subpoena served upon him. We have noticed a few of them in particular. As to the others urged, on consideration of them, we do not think that they show any valid grounds for the discharge of the petitioner, nor why the inquiry proposed to be entered upon by the Board of Aldermen through its committee should be halted. While we have particularly commented on only one of the lines of inquiry covered by the resolution, we are not holding that others there designated are not proper subjects of inquiry. The refusal of petitioner to appear as a witness before the committee, although he has been duly subpoenaed, is without valid excuse. . It follows from these views that the writ of habeas corpus heretofore issued must be quashed and the petitioner remanded to the custody of the sergeant-at-arms of the Board of Aldermen of the city of St. Louis, to be by him produced before the committee of that Board, as a witness, "there to remain and abide the lawful orders of that committee or of the Board of Aider-men. It is so ordered. Allen and Becker, JJ., concur.