|Legal Opinion: |
Text of Document: April 8, 1996
Your question is: Does the board of mayor and aldermen, sitting as the beer board, have the power of subpoena with respect to hearing beer ordinance violation cases? Unfortunately, the answer is probably no. But my answer is in response to your “urgent” request; therefore, it is the product of hasty research and should be considered in that light. However, I think in depth research would confirm my answer.
I had already faxed you research I did a year or so ago on the question of whether a municipal governing body, sitting in its legislative capacity, has the power to subpoena witnesses and papers, etc. Under Leahy et al. v. City of Knoxville, 245 S.W.2d 772 (1952), and other secondary authorities, the answer was yes. However, where the city’s legislative body acts as the beer board, it probably sits as an administrative body, and when it determines that a violation of the city’s beer ordinance has occurred, and suspends or revokes a beer license, or imposes a civil penalty for, a violation of that ordinance, it probably exercises quasi-judicial powers. The proposition that a beer board is an administrative body finds support in Shelton v. Mooneyham, 205 Tenn. 425, 326 S.W.2d 825 (1959).
My hasty research turned up a multitude of instances in which various courts, legislative entities, and administrative agencies in Tennessee have been given subpoena power. The governing bodies of municipalities chartered under the general law manager-commission charter and the general law modified manager-council charter have been given that power. [See Tennessee Code Annotated, section 6-20-211 and Tennessee Code Annotated, 6-32-109]. In addition, many private act charters give municipalities subpoena power. However, I think a good argument can be made that the grant of subpoena power in both the above general law charters, and in most, if not all, private act charters, extends only to the legislative functions of the municipal governing bodies. Even if that is not true, neither of those general law charters has any bearing on your city, which has a private act charter. That private act charter contains no subpoena power.
I doubt that a municipal governing body, sitting as an administrative body, has any implied power to issue subpoenas. As far as I can determine, that question has never been directly addressed in Tennessee, but Rushing v. Tennessee Crime Commission, 117 S.W.2d (Tenn. 1938) speaks with approval of grants of subpoena power found in charters and general law, but contains no hint that such grants may also be implied. Leahy, above, also said that a city had the inherent authority to investigate activities of its departments and employees, but as to the issuance of subpoenas as an instrument of such investigative activities, the Court relied on provisions in the City of Knoxville’s charter [one of those provisions might have actually been in the city’s municipal code] authorizing the city’s governing body to issue subpoenas for legislative purposes. It is also said in the annotation titled The Supreme Court and Administrative Subpoenas, found in 78 L.ed.2d 940, that, “Although administrative officers do not have inherent power to require witnesses to appear and testify before them, it is common for the statutes to confer this power.” [At 941.] Although most of those cases involve administrative officers at the federal level, I suspect that general rule applies to state and local officers who exercise administrative and/or quasi-judicial powers. The Tennessee Attorney General also appears to take the view that the power to issue subpoenas must be predicated upon a statute, and that the power of subpoena is no broader than that contained in the statute. [See OAG Opinions 84-330, 83-462, and 77-347.]
You may have pointed out a flaw in the state statutes authorizing beer boards to suspend or revoke beer licenses, or to impose civil penalties, for the violation of beer ordinances. I will do a follow-up letter outlining my research in more detail.
Sidney D. Hemsley
Senior Law Consultant