Statement This is a proceeding in habeas corpus, whereby the petitioner Lowe seeks to be released from the custody of the respondent Summers, who, as sergeant at arms of, and by virtue of a warrant issued by, the house of representatives of the state of Missouri, had arrested said Lowe and was proceeding to take the petitioner before said house to answer the charge of an alleged contempt. The facts, as disclosed by the return, denial, etc., are substantially as follows: On January 15, 1897, the house of representatives, then in session, adopted certain resolutions reciting, in effect, the existence of grave charges against the police and election systems of Kansas City and St. Louis and especially against the board of police commissioners and chief of police of Kansas City, and declaring that, “whereas, the metropolitan police system and the election system of said cities exist by virtue of state laws, and it becomes the duty of this house to be thoroughly informed as to the actual operation of such laws, to the end that if defects therein exist the same should be corrected by adequate legislation •thereon;” and thereupon said house resolved, “that a special committee of seven members of the house be appointed by the speaker of the house to investigate fully the charges made against the said police commissioners and chief of police of Kansas City as well as the methods that have been pursued in the operation of the police and election departments of said cities and any and all defects, if any, in the police and election laws of said cities, and report to this body the results of the investigation thereon, together with such amendments or modifications of the laws thereon as they may deem necessary. And be it further resolved, that this committee have full power to send for persons and papers; that it be empowered to go to any part of the *645state, if deemed proper, to hold meetings and procure evidence,” etc.
The committee thus provided for was duly appointed and it proceeded to Kansas City to investigate. Among other witnesses summoned before it was the petitioner Lowe, who was then, and is yet, the prosecuting attorney of Jackson county. He took the ordinary oath to testify; but when asked to state to the committee whether or not, and what, if any, corrupt propositions had been made to him by the Kansas City chief of police respecting the administration of the law, he, said Lowe, refused to answer. Interrogatories of this import were repeated in various forms, but the petitioner, then on the stand as a witness, declined to answer. Thereupon the committee returned to the capital, and by a written report, signed by its chairman, submitted in detail to the house the conduct of Mr. Lowe. The house then, on January 29, 1897, adopted a further resolution, reciting at length the resolutions giving rise to the appointment of the committee, the report of the committee as to Lowe’s refusal to answer certain questions, and after declaring it the opinion of that body that such information sought was material to the investigation and that Lowe’s conduct was an insult to the house and so' intended, etc.; that Lowe ought to be compelled to answer or be punished for contempt, and that he be summoned to appear at the bar of the house to show cause, etc. A copy of these last resolutions were on February 2, 1897, served on Lowe and he was summoned in accordance therewith to appear before the house on February 8, 1897, to show cause why he should not be punished for contempt. But the said Lowe in like manner declined to obey said last order, and thereupon a warrant for his arrest was, by order of the house, issued, and the respondent Sum*646mers, as sergeant at arms, proceeded to Kansas City and took said Lowe into custody.
Court of appeal: jurisdiction:jurisdiction: ia cas coipus. I. Concerning objections raised by the attorney general as to the matter of my jurisdiction in this proceeding I have little hesitancy in ruling them against his contention. The Kansas City court of appeals is a court o± record, and when writ was applied for the court had adjourned for more than a day. The court was therefore in vacation. See last clause section 6570, Revised Statutes, 1889. The habeas corpus statute intrusts the jurisdiction of such cases “to some court of record in term, or to any judge thereof in vacation.” See. 5346, R. S. 1889. • Unless, then, this statute is in conflict with some provision of the constitution this question of jurisdiction must be regarded as settled in the affirmative. The constitution (sections 3 and 12, article 6) in general terms reposes jurisdiction of habeas corpus in the supreme court and the courts of appeals, and it has never been thought that this, by implication or otherwise, had the effect of denying jurisdiction to the judges of these courts in vacation.
_._._. contempt of general assembly. Neither do T think that the jurisdiction here assumed is to be denied under the provisions of , section 5414, statute of habeas corpus. That section provides that where the applicant for the writ shall be held “on a charge of crime or misdemeanor his application, in the first instance, shall be to the judge of the circuit court for the county in which the applicant is held in custody, if, at the time of the application, such judge be in the county” (except in St. Louis, etc.) * * * and upon every application of the kind aforesaid the applicant shall cause reasonable notice of the time and place of making the application to be given to the circuit or prosecuting attorney for the county in which *647the application is to be made * * * and upon such notice it shall be the duty of such attorney to attend upon the hearing of such application on behalf of the state.” In this ease it appears that when the writ of habeas corpus was applied for the judges of the Jackson circuit court were all in the county, and the contention is that the petitioner should, in the first instance, have applied to one of these; and that under the provisions of the foregoing statute, he was denied the right to sue out the writ before this court or a judge thereof. In my opinion the statute above quoted has no application to a case of the nature we have here. Mr. Lowe was not held under a “charge of crime or misdemeanor” in the ordinary acceptation of those terms. While the prosecution for contempt may be said to resemble that of a criminal nature, I yet think the purpose of the foregoing section was to reach only that character of cases wherein the state is a party. That seems clearly to have been the intention of the legislature; for in addition to the use of the words “crime and misdemeanor,” the statute directs the prosecuting attorney to appear before the court “in behalf of the state.”
II. This matter then of jurisdiction being disposed of, let us proceed to consider the legality of Mr. Lowe’s arrest and detention. Counsel in his behalf have in brief and argument urged with much force and ability that the house of representatives has no jurisdiction or power to punish a contumacious witness called to testify before one of its committees charged with an investigation. In arriving at a correct conclusion of this point, it becomes necessary first to settle on the existence or nonexistence of this power at common law, and then consider what effect or change has been wrought by our state constitution.
*648General assembly: power to punish for contempt: common law: American law. This general power to punish for contempt has resided with the legislative bodies of England for time immemorial. But in this country the jurisdiction of legislative bodies has not been conceded °f so wide a range and so comprehensive as under the English law. The reasons for these limitations are fully discussed and explained in the noted case of Kilbourn v. Thompson, 103 U. S. 168. The existence of this very extensive power in the English parliament had for its basis the enlarged judicial functions exercised by that body. Before its separation into two bodies, since known as the house of lords and house of commons, the English parliament was the hignest court of judicature of the kingdom, and it had therefore full power and authority to try and punish con-tempts which in any way infringed its prerogative And after the division into two bodies such extensive jurisdiction to punish for contempt was by common consent continued. In this country, however, there has been a diligent effort to separate as completely as may be the different functions of government, to distribute the powers — legislative, judicial and executive— and entrust the same to the keeping and administration of distinctive persons or bodies. Hence the tendency to deny legislative bodies the exercise of any function strictly and simply judicial. It has been found, however, impracticable, if not impossible, always to observe and enforce the strict limit of these respective powers; they become in many cases necessarily blended. For example, the legislative body is the judge of the election and qualification of its own members, may try and expel its own members, and may, too, preserve order at its own sessions, and to that end of course must try and determine the facts and pass judgment thereon. These duties are to an extent *649judicial; and lienee I say it is not always practical or possible to entirely divorce the legislative from the judicial function; the concurrent exercise of both by the same body is often essential if not indispensable.
Notwithstanding now it must be conceded that the English houses of parliament may transcend the limits of punishing for contempt that are found in this country, yet, from a rather extensive and careful examination, I find it asserted and “uniformly conceded as a common law principle, that not only may the legislative body inflict punishment on its members who may be guilty of a contempt, but it may impose like penalties on other persons who may commit disorder in the presence of such body or who may ignore or treat with contempt its lawful process, or be guilty of such other acts before the house or its committee as will tend directly and necessarily to defeat, embarrass or obstruct its proceedings. This is a power inherent in the houses or bodies composing the legislative .branch, and for the exercise thereof no express constitutional provision is required; such power exists whether so conferred or not. Cooley’s Const. Lim. [6 Ed.], 158; Black’s Const. Law, 264; Rapalje on Contempts, sec. 2; People ex rel. McDonald v. Keeler, 99 N. Y. 463; In re Falvey v. Massing, 7 Wis. 630; Burnham v. Morrissey, 14 Gray, 226; Anderson v. Dunn, 6 Wheat. (U. S.) 204.
As pithily expressed by Judge Cooley in his work on constitutional limitations at page 160, and after conceding, as the learned author does, that American legislative bodies have not the comprehensive powers in this regard as is exercised by the English houses, “but,” he says, “as incidental to their legislative authority, they have the power to punish as contempts those acts of members or others which tend to obstruct the performance of legislative duty, or to defeat, impede *650or embarrass the exercise of legislative power. * * * Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functionsand whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. * * * A refusal to appear or to testify before such committee, or to produce books or papers, would be a contempt of the house; but the committee can not punish for contempts; it can only report the conduct of the offending party to the house for its action.” The cases above cited from 14 Gray, 7 Wis. and 99 N. Y. support the text just quoted, and to save space I must content myself with a mere reference. .
In view then of the foregoing authorities and the reasoning of .the eminent judges there detailed, I feel secure in the position that, under the common law alone, or even.in the light of the constitutional provisions generally prevailing in the states, either house of the general assembly has the inherent right and power to punish as for a contempt an obstinate and refusing witness; and this, too, whether summoned before the house proper or before one of its committees authorized to investigate a matter pertaining or germane to the legislative duties of the house.
_.. digtri_ button of powers. III. The next question is, has this power, as it existed under the parliamentary common law of the land, been taken away by our state constitution. The learned counsel for petitioner have treated this feature of the case under two heads: First, that under the constitution the powers of the government ar6 into three distinct departments — the legislative, executive and judicial; that *651these different departments are confided to a separate magistracy with an express prohibition that neither department shall encroach on the powers or duties of another, etc.; that the matter of contempt and the meting out punishment therefor is judicial in its nature and therefore beyond the jurisdiction of the legislative body. And, secondly, it is contended, sineesection 17, article 4, has expressly,/stipulated that the house “may arrest and punish by fine not exceeding three hundred dollars, or imprisonment in a county jail not exceeding ten days, or both, any person not a member, who shall be guilty of disrespect to the house by any disorderly or contemptuous behavior in its presence during its sessions,” that this express statement in the constitution providing for the punishment of parties other than members, who should be guilty of contempt in presence of the house is an implied negation of the power to punish contempts notin presence of the house.
The first of these objections is disposed of by the former paragraph of this opinion and the authorities there cited. The matter contained in article 3 of our constitution is in substance the same as that found in most if not all the states of the Union, and the authorities before cited therefore apply as well here as in the states where such opinions were rendered. The power to enforce order and decorum before and toward a legislative body, so as to insure the proper and efficient transaction of its constitutional duties, does not come under the head of “power properly belonging” to the judicial department, but is more accurately classed as a “power properly belonging,” incident to, and inherent in the legislative body.
*652-:-:-: constitutional limitation. *651In my opinion, too, the second objection — to wit, that by section 17, article 4, of the constitution all *652power is impliedly taken from the house to punish for contempt save only that .-, . . -t committed m its actual presence — is even less tenable than that just noticed. The contention is based on the well known maxim of construction, “expressio unius, exclusio alterius. ” But counsel forget that “what is expressed is exclusive only when it is creative, or in derogation of some existing law, or of .some provisions in the particular act. The maxim is applicable to a statutory (or constitutional) provision which grants originally a power or right. In such bases the power or right originates with the statute (or constitution) and exists only to the extent plainly granted.” Sutherland on Stat. Const., see. 325. As already explained, the power of a legislative body to enforce its lawful orders and punish for contempts whether committed in or out of its presence, existed by the common parliamentary law at the time and long before the adoption of the above quoted constitutional provision.
It did not, therefore, create the power. Such power already existed, and the only effect of that constitutional provision was to fix and limit the mode and-duration of punishment to a contempt committed by an outside party in its presence. Prior to the adoption of said constitutional provision the imprisonment by the house was by the common law and parliamentary usage limited to the duration of the session, but this section modified the then existing law to the extent only of definitely fixing the punishment in the one matter of contempt committed in its presence; and this was all it accomplished. The constitution should be read and construed along with and in the light of the common law existing at the time, and it will be construed as modifying or changing the common law to the extent only that it is plainly incon*653sistent therewith. “We are to keep in mind that it (the constitution) is not the beginning of law for the state, but that it assumes the existence of a well understood system which is still to remain in force and be administered, but under' such limitations and restrictions as that instrument imposes.” Cooley, Const. Lim. [6 Ed.], 75. In the language of Judge Denio, People v. Draper, 15 N. Y. 537, “we must keep in mind that the constitution was not framed for a people entering into a political society for the .first time, but for a community already organized and furnished with legal and political institutions adapted to all, or nearly all, the purposes of civil government, and that it was not intended to abolish these institutions, except so far as they were repugnant to the constitution then framed.” Judge Hoar of the supreme court of Massachusetts while discussing similar constitutional provisions,' but even more elaborately than we have here, uses language which I shall quote in concluding this branch of the case:
“We consider the object of these provisions to have been twofold: First. To extend the power beyond the limit which it had by common parliamentary law and custom, by authorizing the imposition of a sentence of imprisonment for a- definite period, which should not be terminated by the ending of the session of the house; and, second, to limit- the power of punishing for constructive contempts-, by expressly defining the cases in which it might be exercised. But we do not consider it as affecting the power of the house to secure by proper means the free and full performance of all its constitutional duties, and to exercise whatever powers are necessary to that end.
“The house of representatives has many duties to perform, which necessarily require it • to receive evidence, and examine witnesses. It is the grand inquest *654for the commonwealth, and as such has power to inquire into the official conduct of all officers ■ of the commonwealth, in order to impeachment. It may inquire into the doings of corporations, which are subject to the control of the legislature, with a view to modify or repeal their charters. It is the judge of the election and qualification of its members It has power to decide upon the expulsion of its members. It has often occasion to acquire a certain knowledge of facts, in order to the proper performance of legislative duties. *
“We, therefore, think it clear that it has the constitutional right to take evidence, to summon witnesses, and to compel them to attend and to testify. This power to summon and examine witnesses it may exercise by means of committees.
“If a witness, duly notified or summoned, by the authority of the house, to attend before a committee; or before the house, refuses to attend, or, when present, and required to testify, or to do any other act which a witness may be lawfully required to do, refuses to obey the lawful commands of the house in that behalf, it is a contempt of the authority of the house; and, upon such refusal to attend, or if such refusal to testify occur before a committee, the house may compel his obedience by arresting him by the proper officer of the house, and bringing him before the house.”
• In keeping with this power, which, it seems to me, is vested in the legislative body, our statute, section 6656, provides: “If any person, whether a member or not, shall disturb the proceedings of any committee of either house, or be guilty of disorder in their presence, the house appointing such committee may punish such person as if the like offense were committed in the presence of such house.” The refusal of a witness sum*655moned before the committee to answer proper questions is clearly “disorder in their presence,” andeonstitutes such conduct as tends to “disturb the proceedings.”
-: -: conflicting duty of public officer. Admitting now, as I feel we must, that the house of representatives has jurisdiction and power to punish for contempt — whether it be direct as provided in the single instance named in the constitution, or constructive as authorized at common law — it can not be successfully denied that petitioner Lowe has so conducted himself as to warrant the exercise of that power by the house. At all events, when summoned it was his duty to appear before the bar of the house, answer the alleged contempt, and show cause why he had refused to testify. There is nothing here shown to justify that refusal. The resolutions under which the committee- was acting, and which constituted its commission, disclosed a proper and lawful object, to wit, to investigate the operation of the police laws at Kansas City, as well as the conduct of the officers in discharge of duties relating thereto, and report to the house “the results of the investigation thereon, together with such amendments or modifications of the laws thereon as they may deem necessary.”
The mere fact that at the time he was called to testify before the committee petitioner Lowe was prosecuting attorney, can under no possible view of the case, be treated as an excuse for his contumacious behavior. If when subsequently summoned before the house his official duties were such as rendered it quite impossible to attend or so damaging to the public service that obedience in the one case would amount to a dereliction of duty in the other, then it was proper to submit the causes of delinquency to the house and ask for further time or that ‘he be excused altogether from *656answering the charges. But in ignoring this order of the house he was guilty of a second contempt.
There is nothing in the case made here that justifies the suggestion that the investigation was a mere pretense or instituted “for political purposes, not connected with intended legislation” or “to vindicate somebody.” The questions asked, and which the petitioner refused to answer, were apparently proper and germane to the objects of the investigation as set out and declared in the original resolutions adopted by the house.
-: -: affidavit charging contempt. IV. Petitioner’s counsel make the technical point in their brief that before a warrant can be issued for constructive contempt there must be filed an affidavit charging such contempt. I think there is no merit in this contention. In proceedings before an ordinary court of record to punish one charged with contempt committed out of its presence, the usual practice undoubtedly is to require an affidavit of some one who witnessed the act. But in proceedings before legislative bodies it would seem a report signed by the committee or its chairman who has knowledge of the fact ought to be sufficient. The sole purpose is to inform the offended body of the acts constituting the contempt. This is well performed by a written report signed by a sworn officer and member of the body. “It has been held that an officer’s return of process is sufficient to inform the court.” Rapalje on Contempts, sec. 93.
After a patient and careful consideration of this matter in all its bearings, I have concluded that the house of representatives has the inherent power and authority to punish for contempt of its proceedings, and that too whether the same be committed in its presence or before one of its committees while engaged in the investigation of matters within the scope of leg*657islative duties belonging to the house; that this jurisdiction and authority is vested by the common law and has not been abrogated by the constitution or statute law of this state; that petitioner Lowe was, as shown by the record, guilty of such conduct as tended to embarrass and obstruct the house while pursuing a legitimate inquiry, and was therefore in contempt, and that the proceedings by the house to enforce obedience to its mandates and looking to the punishment of the recusant witness, were sufficiently regular.
The petitioner will therefore be remanded to the custody of the sergeant at arms.
The foregoing opinion has been submitted to my associates,
Judges Smith and Ellison, and I am authorized to say that they concur in the views therein expressed.