[Crim. No. 849. First Appellate District, Division One.-August 14,

1919.]

In the Matter of the Application of ANTONE AZEVEDO for a Writ of Habeas Corpus.

[1] CRIMINAL LAW-MURDER-FINDING AND RECOMMENDATION OF JURY -SENTENCE-POWER OF COURT.-In a prosecution for murder, the jury having found the defendant guilty of murder in the second degree, but having recommended him to the mercy of the court, the trial court has the power to impose upon the defendant a sentence of imprisonment in the state prison for the period of his natural life.

[2] ID.

STATEMENT OF COURT IN IMPOSING SENTENCE-MERE OPINION AS TO MERITS.-In such case, the language of the judge in passing sentence that "I see no way out of it, . . . except to punish you by imprisonment for the crime of murder, not of the second degree, but of the first degree, and it is therefore the judgment of the court... that you be taken hence and confined in the state prison ... for the period of your natural life," amounts to no more than a declaration, that, in his opinion, based on the evidence in the case, the defendant merits punishment equal to that fixed for murder in the first degree.

[3] ID.—PUNISHMENT TOO Severe-ConsideRATION OF PLEA.—A plea that the punishment imposed is more severe than it ought to have been can only be considered by the proper authorities in the case of an application for commutation of sentence, parole, or pardon. APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal. Denied.

A. Q. Lomba for Petitioner.

WASTE, P. J.-The petition on behalf of Antone Azevedo for a writ of habeas corpus discloses that he is now confined in the state prison at San Quentin, having been convicted of murder in the second degree. But one point is raised by the application.

The jury, by their verdict, found the defendant guilty of murder in the second degree, and recommended the defendant to the mercy of the court, yet he was sentenced to undergo imprisonment for life. In pronouncing sentence the trial court, after a review of the testimony, said to the prisoner: "I see no way out of it, Azevedo, except to punish

you by imprisonment for the crime of murder, not of the second degree, but of the first degree, and it is therefore the judgment of the court, Azevedo, that you be taken hence and confined in the state prison at San Quentin for the period of your natural life." The point made by the petitioner is that the court exceeded its jurisdiction, and in reality sentenced the defendant for murder in the first degree.

There is no merit in the contention. "Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years. (Pen. Code, sec. 190.) [1] It was, therefore, within the power of the trial court to impose, upon defendant, the punishment pronounced. All the proceedings were in due and proper form. The commitment recites that "whereas said Antone Azevedo has been duly convicted in this court of the crime of murder in the second degree, it is therefore ordered, adjudged and decreed that said Antone Azevedo be imprisoned in the state prison of the state of California for the term of his natural life as a punishment in said case."

[2] The language of the judge, in passing sentence, amounted to no more than a declaration that in his opinion, based on the evidence in the case, which he had just reviewed, and which related to the killing of defendant's wife, the defendant merited punishment equal to that fixed for murder in the first degree.

[3] The defendant's complaint amounts only to a counter-plea that his punishment is more severe than it ought to have been. That is a matter which can only be considered by the proper authorities in the case of an application for commutation of sentence, parole, or pardon. (People v.

Huff, 72 Cal. 117-119, [13 Pac. 168].)

The application for the writ is denied.

Bardin, J., pro tem., and Richards, J., concurred.

[Civ. No. 2723. First Appellate District, Division Two.-August 14, 1919.]

HUTCHINSON CO. (a Corporation), Respondent, v. MARGARET FAY COUGHLIN, Appellant.

[1] CONSTITUTIONAL LAW-DUE PROCESS CLAUSE-PURPOSE AND SCOPE. The purpose of the constitutional guaranty that property shall not be taken without due process of law is to exclude arbitrary power from every branch of the government. It is a restraint upon the legislative, executive, and judicial departments.

[2] JUDGMENTS-FINALITY OF DECISIONS-FRAUD-EQUITY.-After the court acquires jurisdiction of the defendant and subject matter of a particular case, it may proceed to judgment; and so long as the judgment rendered is one within the general power of the court extending over all similar cases, and within the issues of the particular case, that judgment, when it shall have become final, is conclusive upon the parties and in regard to all matters adjudged, regardless of any error on the part of the court. It may be attached for fraud by a suit in equity, in which the burden of both pleading and proving the fraud rests upon the complainant.

[3] STREET LAW-ASSESSMENT PROCEEDINGS-FINALTY OF DECISIONS.— Such rule and the rule that if there is fraud, or arbitrary action in excess of the jurisdiction of the court, either may be shown in a proper proceeding, unless the injured party has waived his rights by consent to the act or in some other way, apply as well to assessment proceedings as to judgments of court.

[4] ID. OPPORTUNITY TO BE HEARD-FINALITY OF JUDGMENT OF LOCAL GOVERNING BODY-CONSTITUTIONAL LAW.-Where an individual has been given an opportunity to present to the local governing body his objections to an assessment levied for local public improvements, its decision, in the absence of fraud, or arbitrary action amounting to fraud, may be as conclusive as the judgment of a court in a civil action. The constitutional guaranty of the right to be heard does not necessarily require a determination in a court proceeding.

[5] ID.

FRAUD-PRESUMPTION-FAILURE TO APPEAL-BAD FAITH NOT TO BE ASSUMED.-Fraud is never to be presumed, and where a person complaining of a local assessment did not appeal from the action of the superintendent of streets, who levied the assessment, to the city council, it cannot be assumed that if such person had just cause of complaint, the council would not upon appeal have ordered the assessment corrected.

1. What is due process of law, notes, 24 Am. Dec. 538; 20 Aın. Et. Rep. 554.

[6] ID. DISTRICT ASSESSMENT

DETERMINATION OF BENEFITS-NATURE OF PROCEEDINGS RIGHT TO APPEAL- FINALTY OF DECISION OF COUNCIL.-Under the Street Improvement Act of 1911, where the expense of the improvement is chargeable upon a district, the examination and determination of the comparative benefits by the superintendent of streets is essentially judicial in its nature. If his methods or his conclusions are erroneous, the property owners aggrieved have an opportunity to protect themselves by an appeal to the city council; and all decisions and determinations of the council upon notice and hearing in this regard are final and conclusive as to all errors and irregularities which the council might have avoided or remedied or which it could then remedy.

[7] ID. ERRONEOUS ASSESSMENT AFFIRMED-HEARING DENIED-REMEDIES OF PROPERTY OWNER.-If an appeal to the city council is made and that body fraudulently or arbitrarily affirms an erroneous assessment or refuses the property owner a hearing, the courts are open for a direct attack on the action of the council, or on suit being brought to enforce the assessment, such matter may be interposed in defense.

[8] ID.-FAILURE TO APPEAL-ESTOPPEL TO ATTACK VALIDITY.-If a property owner, having a right to defend against an erroneous assessment for work ordered after jurisdiction has been established, fails to assert that right in an administrative tribunal which is vested with power to correct the error, he may not be heard, either as a plaintiff or defendant, in any litigation involving the assessment, to assert its invalidity, without showing either fraud or the exercise of arbitrary and harmful power on the part of the administrative tribunal.

[9] ID.-APPROVAL OF ERRONEOUS ASSESSMENT BY COUNCIL - - EFFECT OF.-An erroneous, arbitrary, or even a fraudulent assessment will not render it void after the council has approved it, either actually upon hearing or impliedly because no protests are made.

[10] ID.-CONFISCATION OF PROPERTY-ASSESSED VALUATION IMMATERIAL. The mere fact that the amount assessed against certain lots for street improvements exceeds the amount at which they have theretofore been appraised for taxation does not necessarily lead to the conclusion that the assessment is confiscatory.

APPEAL from a judgment of the Superior Court of Alameda County. William H. Waste, Judge. Affirmed.

The facts are stated in the opinion of the court.

8. Estoppel of property owner to attack validity of special assessment, notes, Ann. Cas. 1915B, 753; 9 A. L. R. 634.

Walter J. Thompson and Henry F. Marshall for Appellant.

Ogden & Ogden, as Amici Curiae, in Support of Appellant.

Fitzgerald, Abbott & Beardsley for Respondent.

BRITTAIN, J.-The defendant appeals from a judgment foreclosing the lien of a street assessment on her four lots in Oakland.

The assessment proceedings were under the Street Improvement Act of 1911 as originally adopted. The work was grading, curbing, macadamizing, and guttering one block on Brooklyn Avenue, between Lake Shore Boulevard and Newton Avenue, one block on Wesley Avenue, between Lake Shore Boulevard and Newton Avenue, and the crossing formed by the intersection of Brooklyn, Newton, and Wesley Avenues, in the city of Oakland. Newton Avenue and Lake Shore Boulevard are approximately parallel, and Brooklyn Avenue connects them, running at right angles to Newton Avenue. Wesley Avenue runs diagonally across an imaginary square, two sides of which are formed by the lines of Newton Avenue and Brooklyn Avenue, extended, the other sides being represented by lines parallel to the two extended lines. The crossing formed by the intersection of the three avenues is represented by the triangle formed between the sides of Newton Avenue and Brooklyn Avenue, extended, and the lower diagonal side of Wesley Avenue. The total cost of the work, with expenses, was $5,400.50, of which $1,630.90 represented the cost of the work on the block on Brooklyn Avenue; $1,795.99, the cost of the work on the block on Newton Avenue, and $1,855.28, the cost of the work on the crossing.

In the resolution of intention to do the work it was declared that it was of more than local or ordinary public benefit and that the expense should be chargeable upon a district. The district included seven entire blocks and parts of four other blocks. The blocks were not uniform in size nor shape. No part of the district extended across Lake Shore Boulevard. The work done was in the southwest corner of the district, the improved portions of Brooklyn