In re Holman
| Decision Date | 06 February 1917 |
| Citation | 191 S.W. 1109,197 Mo.App. 70 |
| Parties | In Re CHARLES L. HOLMAN, Petitioner |
| Court | Missouri Court of Appeals |
Argued and Submitted, January 16, 1917. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
WRIT QUASHED.
STATEMENT.--The petitioner, Charles L. Holman, complaining that he is unlawfully deprived of his liberty by one William C Matthews, under a certain warrant or commitment issued by and under authority of the Board of Aldermen of the city of St Louis (a copy of which warrant is attached to the petition), avers that in and by a certain subpoena, signed by the Honorable Nathan Hall, he is summoned to appear before a committee of the Board of Aldermen of the city of St. Louis, at the City Hall in said city, on December 1, 1916, then and there to testify to the truth with respect to certain matters, more particularly set out in the subpoena (a copy of which is attached), and that the petitioner has been advised by counsel that he could not be required to testify with respect to matters therein set out and therefore refused to do so; that thereupon the commitment above referred to was issued and his body taken into custody by respondent Matthews. Averring that the commitment and arrest were unlawful, illegal and without warrant of any law, the petitioner asks that the writ of habeas corpus issue by our court, requiring that his liberty be restored to him, or cause to the contrary shown.
The writ of habeas corpus was accordingly issued.
Upon the return day the cause was set for hearing before the court, further time being granted for making the return. Respondent Matthews thereafter and in due time made his return.
That return sets up that respondent is the duly elected sergeant-at-arms of the Board of Aldermen of the city of St. Louis and was such at the times thereafter mentioned. It sets up the preamble and resolution of the Board, hereafter set out, providing for the appointment of a committee and that they were adopted by unanimous vote of the Board; sets out the powers of the city and of the Board of Aldermen; also an ordinance of the city covering the powers of the Board; the appointment of the committee under a resolution of the Board; that the committee was organized and proceeding under authority and direction of the Board, and for the purposes in the resolution set out, and had subpoenaed petitioner; sets out the subpoena, signed by the vice-president of the Board; the acknowledgment of service of it upon him by petitioner; his refusal to appear; the report of the committee showing service of the subpoena upon petitioner, and his refusal to appear and testify before the committee, and prays for an attachment of petitioner for his failure and refusal; also sets out the writ of attachment issued by the president of the Board and recites the arrest ant attachment of petitioner thereunder by respondent as sergeant-at-arms of the Board; that petitioner is president of the Laclede Gas Light Company, which company, it is averred, is a corporation engaged in the business of manufacturing and vending gas for lighting, heating and cooking purposes in the city of St. Louis; that it "has caused to be laid in the streets of St. Louis pipes, ducts and conduits, and in the carrying out of its business contemplates a further use of the streets in this and other respects; that the said Charles L. Holman is a competent, material and necessary witness before said special committee to properly make its investigation as authorized by said resolution, and it is necessary to obtain certain information from the said Charles L. Holman to be laid before the Board of Aldermen of the city of St. Louis to aid it in legislating upon certain subjects properly within the scope of the legislative branch of the city of St. Louis to the better interest and the general welfare of the city, and its inhabitants."
Upon the coming in of the return, the petitioner, admitting that the Laclede Gas Light Company is a corporation, organized and existing under two Acts of the Legislature of this State, one entitled, "An Act Entitled an Act to Incorporate the Laclede Gas Light Company," approved March 2, 1857 (See Laws 1857, p. 598, regular session), the other amendatory thereto entitled, "An Act to Amend an Act to Incorporate the Laclede Gas Light Company," approved March 26, 1868 (see Laws 1868, p. 187), avers that by these Acts the Laclede Gas Light Company is authorized to have and enjoy the privilege and right of lighting the city of St. Louis and to make and vend gas, gas-lights and fixtures, and any substance or material that may now or hereafter be used as a substitute therefor, and to that end establish and lay down in the corporate limits of said city all pipes, fixtures or other thing properly required in order to do the same, and all other powers necessary to execute and carry out the privileges granted to the company; that this company was chartered and organized and is now engaged in the business of making and vending gas for light, heat and power throughout the city, and in the exercise of the privileges so conferred, "and is the only person or corporation engaged in such business within the limits of said city--but it possesses and claims no exclusive right to engage in said business." It is further set out that that company now pays all taxes levied for all purposes under legislative authority, including a personal property tax, a real property tax, a merchants' and manufacturers' license tax and a franchise tax, and is not and has not been delinquent in the payment of these. In an exhibit accompanying the answer, is set out in detail the amount of manufacturers' and corporation license taxes, as also those assessed for local and general purposes upon the corporation for the year 1915. The answer further admits that the petitioner is the president of that company; that he was summoned and refused to appear and testify as alleged in the return of the respondent; that he is without knowledge or information with respect to the other matters and things set forth in the return, "nevertheless, petitioner says that if said matters and things be true, they do not justify the arrest of petitioner nor afford warrant in law for his detention because:
The cause was heard before our court on these pleadings, treating the pleading of petitioner as a demurrer to the return.
The city of St. Louis, acting under the provisions of section 22, article 9, of the Constitution of this State, by vote of the electors of the city, at an election held June 30, 1914, adopted a revised Charter, which, under the same section of the Constitution, went into effect sixty days thereafter--that is to say, August 29, 1914. By section 21 of the same article 9 of our Constitution, it is provided that after the adoption and depositing in the proper offices of the State and city or county, all courts should take judicial notice thereof. So our Supreme Court has held in several cases--among others, City of St. Louis v. Lang et al., 131 Mo. 412, l. c. 420, 33 S.W. 54. It is true that this provision found in section 21, article 9, of the Constitution, directly refers to the original Charter, but we have no doubt that it is as applicable to the revised Charter as to the old one, and counsel for the respective parties have argued and submitted the case on the theory that the city is now acting under this revision of its Charter.
By section 1, of article 4, of that Charter, the legislative power of the city, subject to the limitations in the Charter, is vested in a Board of Aldermen, consisting of a president and twenty-eight members.
By thirty-five subdivisions of section 1, article 1, of the Charter, the powers of the inhabitants of the city as a body corporate are specifically set out; subdivision 2 giving power to adopt such classifications of the subjects and objects of taxation as may not be contrary to law; subdivision 23 giving power to license and regulate all persons, firms, corporations and associations engaged in any business, occupation, calling, profession or trade; subdivision 24 giving power to impose a license tax upon any business, vocation, pursuit, calling, animal or thing; subdivision 25 giving power to define and prohibit, abate suppress and prevent or license and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the city and all nuisances and causes thereof. By subdivision 33 power is given to do all things whatsoever expedient for promoting or maintaining the comfort, taxation, morals, peace, government, health, welfare,...
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