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District Court of Appeal, Second District, Division 1, California.


Civ. 17665.

Decided: November 09, 1950

E. L. Searle, Los Angeles, for petitioner. Fred N. Howser, Atty. Gen., Bayard Rhone, Deputy Atty. Gen., for respondent.

According to petitioner's brief, the purpose of the present proceeding is twofold: first, to secure a review of ‘the trial court's order denying Petitioner's motion to set aside the Judgment of Contempt and quash the process (therein) * * * upon the ground that the Court never acquired jurisdiction over the person of John B. Leonis in the contempt proceeding; and second, * * * to review the trial court's Judgment of Contempt, and (if the court is held to have acquired jurisdiction,) to determine whether the acts or omissions attributed to the Petitioner * * * violated the Judgment * * * in the nuisance action and were such violations as are punishable in a contempt proceeding brought for that purpose’.

On January 3, 1950, after a hearing on an order to show cause in Superior Court, Judge Joseph W. Vickers found the petitioner John B. Leonis and other members of the City Council of Vernon, California, guilty of contempt of court ‘for failure to comply with the judgment of this court entered on February 1, 1946 in that they and each of said defendants has knowingly, wilfully and intentionally failed and refused either individually or collectively to complete within 90 days after the entry of said judgment, and more particularly after November 12, 1948 or at any time, all arrangements necessary for the financing of the City of Vernon's proportionate share of the new sewage treatment plant and works at Hyperion, according to gallonage allotted to said City, so that said share will be available as required’.

The trial court ordered each of the individual defendants to be confined in the county jail for a period of five days, and further required each defendant including the City of Vernon to pay a fine of $500.00, ‘and upon failure of said individual persons * * * to pay said fine, to be imprisoned in said County Jail at the rate of one day for each $5.00 of said fine, until said fine is paid or satisfied’. The commitment orders the individual defendants to be detained in jail ‘until he is a member of the City Council * * * shall have completed all arrangements necessary for the financing of the proportionate share of the City of Vernon. It is further specified that ‘they shall take such action (1) by the appropriation of the necessary funds as stated in said Judgment, or (2) the calling of an election for the issuance of bonds, or (3) the levying of a tax, charge, assessment, imposing fees, tolls, rentals or other charges for the raising of the necessary funds, or (4) by any other system, method, plan or device, or combination thereof, to provide the means by which said municipal corporation could or might raise, accumulate or collect the moneys necessary’. The execution of the commitment was stayed until January 31, 1950.

The findings of fact as to the defendants' contempt recite the terms of the original judgment of February 1, 1946 in the case of People v. City of Los Angeles, affirmed in 83 Cal.App.2d 627, 189 P.2d 489, and denial of a peition for certiorari in the United States Supreme Court, City of Culver City v. People, 335 U.S. 852, 69 S.Ct. 80, 93 L.Ed. 400. It was found that each of the defendant councilmen had ‘personal knowledge of all of the terms of said judgment and * * * of all the requirements imposed upon the City of Vernon for the abatement of the nuisance mentioned in said Judgment’.

It was further found that subsequent to the entry of the judgment in the abatement proceedings the City of Los Angeles had ‘proceeded with the construction of a new treatment plant * * * as required by said Judgment to the point where the entire project is more than 67% completed; * * * that in connection with the construction of the entire project the defendant City of Los Angeles, together with the other corporate defendants that have joined with the City of Los Angeles, have incurred obligations and liabilities in excess of $38,000,000 and have expended and have due on accounts payable a sum well in excess of $21,000,000’.

The trial court then found that the City of Vernon and its councilmen had not complied with the abatement judgment in that no action had been taken ‘to proceed with the preparation of plans and specifications' for disposal of sewage, but had elected to make use of the Hyperion facilities; nor had any steps been taken to levy a tax, appropriate money or otherwise to collect the moneys necessary for the payment of said city's proportionate share of the cost of construction of the new (Los Angeles) treatment plant and submarine outfall at Hyperion, so that its share would be available as required. It was found that the City of Vernon had on hand ‘the sum of $405,697.62 in the general fund and $1,491,103.16 in the special fund’.

The contention that the lower court never acquired jurisdiction over the person of petitioner Leonis is predicated upon the ground that petitioner was never served with the order to show cause in re contempt as required by said order, and that the appearance of Edward R. Young, attorney for the City of Vernon and the City Council, was not only made without authority so far as petitioner was concerned, but had been specifically forbidden by Leonis.

It appears as recited in the petition for Writ of Review, that John B. Leonis, a member of the City Council of Vernon, had been seriously ill for some two years, had not attended any meetings of the Council since January 3, 1949, and had been on a leave of absence because of such illness. The contempt order to show cause was issued on December 5, 1949 and ordered Leonis and the other cities to appear before Judge Vickers on January 3, 1950. This order required that ‘a copy of said Affidavit and of this Order be served upon the person specifically named * * * at least five days before the date of said hearing’. It is conceded that there was no such service on the petitioner Leonis at any time.

According to the respondent's brief, ‘On December 28, 1949, there was a conference in the chambers of the judge (Vickers). * * * It was then reported that all persons except John B. Leonis had been served. Thereupon, Edward R. Young stipulated that he was authorized to represent John B. Leonis and that it would not be necessary to make service upon him and that he would appear for the said John B. Leonis * * * without the necessity of serving him * * *’. Attorney Young ‘also stated to the court that he would have John B. Leonis present in the court on January 3, 1950, unless the physical condition of John B. Leonis was such that he could not be present’. Petitioner did not attend the trial held on January 10th and 11th, 1950, at which time Leonis and the other defendants were found guilty of contempt.

On January 5, 1950 Attorney Edward R. Young, representing the City of Vernon, caused to be presented to petitioner Leonis an answer for the latter's signature. Leonis twice refused to sign the answer; nevertheless Attorney Young filed said answer in behalf of Leonis, the other four councilmen having signed it. Affidavits and counteraffidavits appear of record in reference to the attorney's authority to appear for petitioner; Mr. Young stated to the Court, however, ‘I will admit I never requested authority’. In reference to this matter respondent's brief lays some stress on the fact, commented on by Judge Vickers, that ‘Mr. Young had represented Mr. Leonis as a member of the City Council for some several years'. The affidavits are in conflict as to whether Attorney Young was definitely instructed not to represent the petitioner.

After the judgment of contempt was entered on January 11, 1950, a registered letter dated January 17, 1950 was sent by Leonis to Attorney Young instructing the latter not to represent petitioner in any capacity. To this Young responded by a letter advising Leonis of the judgment of contempt ‘of which I have already advised you by telephone’. On January 26, 1950, petitioner filed a Notice of Special Appearance and motion to vacate the contempt judgment, which motion was denied, the trial judge expressing disbelief in the assertions contained in petitioner's affidavit.

It can hardly be questioned that a judgment imposing a jail sentence and fine for alleged contempt of court must be preceded by the certain preliminary steps in due compliance with law, and with proper consideration for the rights of the accused person. Whatever academic distinctions may be attempted between the criminal and civil aspects of contempt proceedings in general, the present proceedings in its practical application is essentially criminal or at the least quasi-criminal in nature.

The well known constitutional guarantees of due process are particularly applicable and cannot be dispensed with. Certainly in this respect there can be no difference whether the defendant is charged as a private individual or, as in the present case, for alleged dereliction as a member of a city council. In any and all cases such a defendant is entitled to stand upon the constitutional guarantees and to insist upon compliance with the law in reference to service of process and representation in court. Such matters are too serious and too far reaching in effect to justify cursory treatment. The validity of such a judgment must not depend upon supposition or conjecture.

In the instant case it is conceded that John B. Leonis was not served with the order to show cause in re contempt, although, as noted in petitioner's brief, ‘there is no contention that Mr. Leonis was either concealing himself to avoid service * * * nor that Mr. Leonis was not a resident of California’. Petitioner was indeed, as stated to the court by Attorney Young, sick at home, and would ‘have to be brought up in a wheel chair. * * * his physical condition is such that it makes it very difficult for him to get around, not only by reason of having had a leg amputated, but also because of age’. Petitioner could hardly have escaped service of process even if so inclined.

Since the first and fundamental step of service of process as required by the order to show cause was entirely omitted, it then became incumbent on the trial court to be assured of personal jurisdiction over this particular defendant before proceeding to pronounce a judgment imposing fine and imprisonment. This was not done. All that was done towards this end, according to the record, was to accept an attorney's oral ‘stipulation’ that petitioner along with other defendants was represented by such attorney, and that it would therefore not be necessary to serve petitioner. In this connection it may be noted that petitioner's associates, the other four councilmen, had been served with process. No explanation as to why John B. Leonis was not also served as specifically required by the order, has been offered.

Petitioner's other main contention goes directly to the validity of the contempt judgment. Assuming but not deciding that the trial court did acquire jurisdiction over the person of John B. Leonis, the judgment rendered cannot be sustained unless it appears that petitioner's personal acts or omissions have amounted to a definite contempt of court. Petitioner's alleged derelictions for which punishment is to be inflicted are to be found in the affidavit of John T. Leggett, assistant sanitary engineer of the State Department of Public Health. The order to show cause in re contempt was predicated on this document.

After averring that petitioner and the other defendants as members of the City Council had personal knowledge of the judgment for abatement of nuisance, and that the City of Los Angeles had, pursuant to that judgment, constructed the Hyperion plant, incurring therefor ‘obligations and liabilities in excess of $38,000,000 and have expended and have due on accounts payable a sum in excess of $21,000,000’, the affidavit purports to define the defendants' conduct which warrants punishment for contempt.

It is important to note that defendants are not charged with any positive acts. The affidavit merely alleges that ‘during the period from the date of entry of (the nuisance) judgment in this action, to-wit: February 1, 1946, to date, neither the City of Vernon nor any of the members of its City Council * * * have or has individually or collectively, exercised any of its or their official duties, powers or functions * * * to levy a tax, or set in motion by the enactment or an ordinance, adoption of a resolution or otherwise, any proceedings for the submission to the electors of said municipal corporation of a proposition for the incurring of a bonded indebtedness * * * or by any other system, method, plan or devise to provide the means * * * (to) collect the monies necessary for the payment of said city's proportionate share of the cost of construction of the new treatment plant * * * so that its share would be available as required; that no action has been taken to appropriate any funds for such purpose’. The city is stated to have a balance of $405,697.62 in a General Fund, and $1,491,103.16 in a Special Fund. It is also alleged that the ‘City of Vernon and its officers and agents herein named have the ability to comply with the (nuisance) judgment’.

Petitioner's brief calls attention to the fact that the affidavit on which the order to show cause is based, nowhere charges the defendants with ‘knowingly, wilfully or intentionally failing or refusing to carry out, perform or comply with’ the terms of the nuisance judgment. The trial court, however, found that the defendants were guilty of contempt in that the failure and refusal charged had been ‘knowingly, wilfully and intentionally’ done. In other words, although by the terminology of the affidavit defendants including the petitioner, may have deemed that the matter was merely a civil contempt proceeding, ‘it ended as a criminal contempt proceeding where the punishment was meted out for the wilful, intentional failure and refusal of the Defendants to comply with the mandatory provisions of the court's judgment’. Petitioner alleges that the trial court thus ‘permitted its judicial power to be used * * * for the purpose of enforcing payment of an alleged debt by the Defendant City of Vernon to the City of Los Angeles by contempt proceedings and by jail sentence, clearly in violation of the State and Federal Constitutional provisions that no man shall be imprisoned for a debt’.

A far more serious defect is pointed out by petitioner, in that ‘The contempt judgment fined and imprisoned the individual defendants for the nonpayment of a sum of money, the amount of which had not been fixed either in the nuisance judgment or the Leggett Affidavit, and for failure to pay said undertermined sum of money to an unnamed party in the proceeding’. (Italics added.)

The original estimate of the total cost of the project seems to have been $21,000,000, but according to the Leggett affidavit such an amount had already been exceeded although the plant was then only 50% complete, indicating a possible total cost of some $43,000,000. Using these figures, it is obvious that if the City of Vernon had issued bonds or otherwise taken steps to raise its proportionate share of the original estimate, such amount would have been entirely inadequate. Yet petitioner is to be jailed and fined for failing to proceed to raise an indefinite and unascertained amount of money, to be ‘available as required’, whatever the latter phrase may mean. It seems not unreasonable to inquire,—available to whom, when and where, and how much? These are not mere technical and unimportant details. They are, indeed, matters of vital importance; facts necessary to know before a city or its officers could legally proceed to raise money under taxing power, bonding authority or otherwise.

It requires no citation of authority to support the statement that contempt proceedings must be based upon some definite act of misfeasance or nonfeasance. And, in the language of 5 Cal.Jur. 938, ‘Upon proceedings to review an order committing a person for contempt, no intendments or presumptions may be indulged in as against the accused, but both the order and the findings of the court must be construed in his favor’. Unless the affidavit initiating the proceeding ‘contain a statement of facts which shows on its face that a contempt has been committed, the court is without jurisdiction to proceed in the matter and any judgment of contempt thereon is void. Nothing can be proved that is not charged, and if the affidavit is materially defective, the judgment founded upon it must necessarily be equally defective’.

Tested by the above fundamental principles the judgment of contempt imposing punishment on petitioner John B. Leonis, cannot be sustained. The indefiniteness of the original nuisance judgment is reflected and repeated in the contempt proceedings with the net result that petitioner as member of the City Council is ordered imprisoned and fined for alleged failure to in some manner raise an undetermined sum of money and to make the same ‘available as required’, to some undesignated person at some indefinite time.

It may well be, as noted in petitioner's brief, that when the Hyperion plant has been completed and its actual cost determined, it will be possible for a trial court to fix the amount due from the City of Vernon, to set a time within which the money is to be paid, and to make it clear to whom the sum shall be paid. When that has been done if the City and its officials refuse to comply therewith, having the ability so to do, contempt proceedings may, perhaps, be required. Until that time the matter remains too indefinite to be thus enforced. The above observations are particularly cogent when it is remembered that petitioner was inactive and ill during the period in question, that personal service of the order to show cause was never made upon the petitioner, and that the trial court assumed personal jurisdiction upon a so-called ‘stipulation’ by an attorney who admits never having requested authority to so appear for the petitioner.

No cases have been cited which will justify punishment of petitioner for contempt in failing to perform such indefinite and undetermined acts, under the circumstances of the present case. Undoubtedly the power to punish for contempt is a necessary adjunct to judicial procedure. Its application, however, must be hedged about with adequate protection for the person accused, otherwise the basic constitutional requirements concerning due process and other fundamental rights are without meaning. Even in civil procedure reasonable clarity and definiteness is required; much more so in criminal and quasi-criminal proceedings. The present proceeding falls far short of affording the protection to which petitioner is entitled, and the judgment finding petitioner in contempt of court is void.

The judgment of contempt is, therefore, annualled.