In re Tipton

ADAMS, P. J. Petition for writ of habeas corpus.

This is a companion case to In re Sozzi, ante, p. 304 [129 P. (2d) 41] this day decided. As in the Sozzi case petitioner alleges that he is imprisoned and restrained of his liberty by the .sheriff of Sacramento County, pursuant to a purported conviction in the Justice’s Court of Sacramento Township, in that he wilfully and unlawfully collected garbage in said district, he not then being a collector employed thereby; that on appeal to the Superior Court of Sacramento County, his conviction was affirmed, and that his conviction and imprisonment are illegal for the reason that section 7 of Ordinance and Regulation No. 1 of Hagginwood Sanitary District, upon which the charge against him was based, is unlawful and void.

In the Sozzi ease, wherein the same issue was presented, we have held that said enactment is valid, the writ of habeas corpus has been denied and petitioner remanded. That decision would be controlling here, were it not that petitioner has also alleged that he was “tried in his absence in said Justice’s Court, and never waived his right to be present in court, nor authorized anyone to waive such right, nor knew when his said ease was set for trial”; also, “that your petitioner was informed by his employer, one Jennie Sozzi, that he had been charged with violating said Ordinance, and he appeared March 3rd, 1942, in Justice’s Court in American Township, County of Sacramento, State of California, with counsel provided by his said employer, and was informed by said counsel, to-wit, Charles Reagh, that said case would not proceed further as to him because it had been agreed that a companion case against one L. L. Sozzi should be treated as a test case, [308]and that counsel representing the said Sanitary District and the district attorney had so agreed with said Charles Reagh. On such appearance, petitioner filed an affidavit for change of venue and was informed that proceedings against him would be stayed until the determination of said case of People v. Sozzi. Your petitioner was never again informed of any proceedings against him until Sunday, May 3rd, 1942, when he learned that there stood of record against him the judgment of conviction above mentioned as the result of proceedings on March 20th, 1942, and April 10th, 1942, in the court first above mentioned. Your petitioner never waived his presence in court or trial by jury or any of his other constitutional or statutory rights, nor authorized Charles Reagh nor anyone else to waive any of such rights on his behalf.” The petition is verified, and no answer thereto was filed.