(203 P.)

Martin I. Welsh, of Sacramento, and or the time therefor has expired, is in the James T. Matlock, of Red Bluff, for appellant.

U. S. Webb, Atty. Gen., J. Charles Jones, Deputy Atty. Gen., and Jesse W. Carter, Dist. Atty., of Redding, for the People.

PER CURIAM. This is an appeal from an order of the superior court of Shasta county denying the motion of the defendant to set aside the judgment of conviction of murder in the first degree entered against him upon his plea of guilty on January 20, 1921. No motion for a new trial was made by said defendant, nor was any appeal from said judgment taken by him, but on March 18, 1921, the defendant made the above motion that the said judgment be vacated and set aside and that defendant be permitted to withdraw his plea of guilty theretofore entered and substitute a plea of not guilty to the information on file therein.

nature of an application for a writ of coram nobis at common law. It was further held in that case that, where remedies exist by statute which did not exist at common law, the office and function of the writ are abridged thereby, and in such cases the writ is unavailable. These remedies are the right to appeal and to make a motion for a new trial, and where they are provided by statute, to that extent an application for a writ of coram nobis cannot be entertained. Upon the hearing of the defendant's motion in the trial court no objection was made to the presentation of any of the various matters urged by the defendant as the bases of said motion, nor has any such objection been urged here; but, notwithstanding this state of the record, this court, in entertaining and passing upon this appeal, is not to be understood as holding that as to any of the grounds urged by the defendant in support

Said motion was based on the following of his said motion which would have been ground, namely: reviewable upon motion for a new trial or

"That the said plea of guilty was obtained upon appeal from the judgment, he was enfrom defendant and defendant was induced to titled to make said motion or to have the enter said plea by coercion, fear, threats, mis-order denying the same reviewed upon this apprehension, persuasion, promises, assurances, appeal. inadvertence, ignorance of his rights and of the consequence of his act, without advice of counsel, without being advised of his legal rights, without proper arraignment, without being fully advised as to his rights on arraignment, without being informed or advised by counsel or by said court as to what the punishment for the crime of murder would be, without said court offering to appoint or assign counsel to aid and advise the defendant in his defense, without full knowledge of his rights, without defendant fully comprehending the serious consequences of his plea of guilty, and in violation of his constitutional and legal rights."

With respect to the other grounds upon which the defendant predicated his said motion and which were triable thereon, as for example, the ground that the defendant's plea of guilty was extorted from him by coercion or induced by wrongful persuasions, promises, assurances, or threats, we do not consider it necessary to set forth in detail the evidence presented pro and con in regard to these matters. the record and have satisfied ourselves that We have fully examined as to all such matters in fact, as to every ground relied upon by the defendant in The motion was supported by the defend- support of his said motion, the evidence is ant's own affidavit and by the affidavits of in direct and substantial conflict. We may certain other persons presented at the hear- even go further and say that upon the face ing thereon, and was opposed by the pres- of the record the preponderance of such entation of the affidavits of the justice of evidence is in favor of the proposition that the peace before whom the defendant's pre- the defendant's plea of guilty was not inliminary examination was held, of the dis-duced by coercion, or threats. or improperly trict attorney, of the several officers of the created fears, or by improper or deceiving law implicated in the charges made in the persuasions or assurances, and that the dedefendant's motion, and also by affidavits of fendant's consent to interpose said plea and several other persons who were cognizant of his subsequent action in declining to avail the circumstances surrounding the defend- himself of the aid and advice of counsel, and ant's arrest, imprisonment, examination, in consenting to a speedy hearing upon his arraignment, plea, judgment, and sentence. said plea and to the entry of an immediate The official record of the proceedings of the court was also presented in opposition to said motion. The court denied said motion, and from its order to that effect this appeal has been taken.

judgment thereon, were not procured or induced by any improper conduct on the part of the officers of the law, nor of any failure or neglect on the part of the justice conducting the defendant's examination, or the In the case of People v. Mooney, 178 Cal. trial judge presiding at his trial, in the per525, 174 Pac. 325, it was held that a pro-formance of the duties required of them by ceeding by way of motion to set aside the law to be performed for the defendant's judgment, when made after the judgment protection, and that the proceedings attendhas been rendered and become final, and ing his arrest, detention, examination, arafter a motion for new trial has been made, raignment, trial, and sentence were in all

PEERY v. CITY OF LOS ANGELES et al. issue bonds bearing interest at 42 per cent.,

Unless expressly made so, it is not essen- RICHARDS, Justice pro tem. In these tial that all terms and conditions of the stat-two cases there are three appeals: One by ute under which a bond election is to be held shall be set forth in the ordinance calling the election, or detailed upon the ballot submitting the main question to the voters for their approval; and failure of St. 1901, p. 28, § 2, as amended by St. 1915, p. 97, to require the statement that the bonds shall not be sold below par in the ordinance calling the election does

Herbert Peery, and one by H. W. Anderson, plaintiff and intervener, respectively, in the arst of said actions, and one by H. W. Anderson as plaintiff in the second of said actions. The same questions are presented upon each of said appeals. These actions were each instituted for the purpose of obtaining an in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(203 P.)

junction against the defendant city of Los [ California Edison Company, situate within Angeles and its officials, restraining it and them from disposing of certain municipal bonds of said city for less than the par value thereof, or upon terms which would yield to the purchaser thereof a rate of interest in excess of the rate specified in the ordinances calling the respective elections held in said city for the purpose of securing the approval of its electors for the incurring of the indebtedness to be evidenced by said bond issues; and, also, for the purpose of having declared void a certain contract between said city and one I. H. Hellman, relative to the purchase of a certain portion of said bonds. As to the facts in each of these cases, there is no dispute.

said city, and for the calling and holding of a special election within said city for the purpose of securing the approval of the electors thereof for such bonded indebtedness. In the ordinances providing for the calling of said election it was expressly provided that the maximum rate of interest to be paid on said indebtedness was 5 per cent. per annum, payable semiannually, which rate should not be exceeded in the issuance of bonds for the said indebtedness. The election provided for in said ordinances was duly held on the 3d day of June, 1919, and resulted in a vote of more than two-thirds of the electors of said city voting at said election approving the incurring of said indebtedness and the issuance of said bonds. The entire amount of said bond issue yet remains unsold. The complaints in each of these actions allege that on or about the 1st day of August, 1921, I. H. Hellman made the city council of said city of Los Angeles a proposal in writing whereby he offered to purchase the entire issue of the aforesaid bonds for the sum of $11,965,000 and accrued interest to the date of delivery; that on the 2d day of August, 1921, the said city council of said city passed and adopted a resolution accepting said proposal, and now intends and threatens to sell and issue said bonds in accordance therewith, and for less than the par value thereof, and upon terms which will yield to the purchaser a rate of interest in excess of 5 per cent. per annum upon the par value of said bonds. These actions were accordingly instituted for the purpose of restraining the consummation

In the year 1914 the city of Los Angeles duly and regularly adopted certain ordinances providing for and calling a special election within said city for the purpose of submitting to the qualified voters thereof the proposition of incurring a bonded indebtedness in the sum of $6,500,000, for the purpose of acquiring and constructing certain works for supplying the city and its inhabitants with electricity for heat, light, and power. It was provided in said ordinances that the maximum rate of interest to be paid upon said indebtedness was 42 per cent. per annum, payable semiannually, which rate, it was specifically provided, should not be exceeded in the issuance of bonds for said indebtedness. The election, provided for in said ordinances was duly held on the 8th day of May, 1914, and resulted in a vote of more than two-thirds of the electors voting at said election approving the incurring of said in-of the sale of any part of the unsold portion debtedness and the issuance of said bonds. of either of these bond issues for less than Thereafter, at intervals, several issues of their par value, or upon terms which it is alportions of said bonds were duly authorized leged would in effect work an increase in and made, aggregating in all a total of $4,- the rate of interest to be paid upon said 446,000, leaving the balance of said bonds, bonds in excess of that provided for in the amounting in their face value to $2,054,000, | ordinances calling the special election for the undisposed of at the time of the institution purpose of securing the approval of the elecof these actions. The complaints in these tors of the city for each of these bond issues. actions allege, with relation to the said por- The complaints in each of these actions protion of said bonds remaining undisposed of, ceed to allege that the defendants therein, in that the city of Los Angeles, through its said thus intending and threatening to sell and officials, are negotiating for the sale of said dispose of the unsold bonds in each of said remaining portion of said bonds, and are in- bond issues, are acting professedly upon and tending and threatening to sell the same for under the authority of an act of the Legless than the par value thereof, and upon islature of California, approved June 1, 1921, terms which will net to the purchaser an and entitled "An act authorizing any county, amount of interest more than the equivalent city, town, district, or political subdivision of 6 per cent. per annum, payable semian-organized under the laws of this state to nually on the par value of said bonds.

sell any unsold bonds thereof at a price netDuring the month of May, 1919, the city ting the purchaser not more than six per of Los Angeles duly passed and adopted an- cent. per annum, payable semiannually" (St. other set of ordinances, providing for the 1921, p. 844), and that said statute is in violaincurring of a further bonded indebtedness tion of the Constitution of the United States in the sum of $13,500,000 for the purpose and of the state of California, in that the of the construction of certain other works for same is retroactive and impairs the vested the further supply of electric light, heat, and rights of the plaintiffs and intervener as power to said city and the inhabitants, and taxpayers of said city, and of all other votalso for the acquisition of a certain electric ers, property owners and taxpayers thereof, distributing system owned by the Southern and changes and impairs the obligation of

203 P.-63

The statute of 1901 which provided the procedure for the creation of bonded indebtedness by cities, under which the city of Los Angeles proceeded in respect to both of the bond elections and bond issues in question here, contains, in section 2 thereof, as amended by St. 1915, p. 97, the following provision: * * The ordinance calling such election shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the proposed public improvements, the amount of the principal of the indebtedness to be incurred therefor, and the rate of interest to be paid on said indebtedness, and shall fix the date on which such election will be the voting for or against incurring such indebtheld, the manner of holding such election and

the contract entered into by the voters of said city by and through said elections, and also of the contract which the said voters at said elections authorized the defendants to enter into in reference to the terms of issuance and sale of said bonds; and in so doing deprives these plaintiffs and all other property owners and taxpayers of said city of their property without due process of law. The answers of the defendants in each of said actions consist chiefly in the denial that any threatened or contemplated sale of the remaining unsold portion of either of said bond issues would be in violation of the Constitution of the United States or of the state of California, or of law, and in that respect the defendants deny that the act of the Leg-edness, and in all particulars not recited in such islature approved on June 1, 1921, relating to the disposal of the remaining unsold bonds of municipalities upon the terms provided in said act, is unconstitutional or void as violating any vested or other rights of said plaintiffs or of the voters, property owners or taxpayers of the city of Los Angeles, or as impairing the obligation of any contract made or authorized by the voters of said city, or as depriving the property owners or taxpayers thereof of their property without due process of law. The defendants, therefore, prayed that the plaintiffs and intervener take nothing by their said actions.

ordinance, such election shall be held as pro-
vided by law for holding municipal elections in
such municipality; provided, however, that if
the rate
to be paid on such indebted-
ness shall not exceed four and one-half per
centum per annum payable semiannually, the
rate of interest need not be recited in such or-
dinance, but in its discretion the said legisla-
tive branch may recite in such ordinance the
maximum rate of interest to be paid on such in-
debtedness, not exceeding six per centum per
annum payable semiannually, which rate when
so recited, shall not be exceeded in the issuance
of bonds for such i
indebtedness."

The act of 1901 also provides, in section 6

thereof, that such bonds should be issued and sold "for not less than their par value.” Stats. 1901, p. 29. The charter of the City of Los Angeles provides, in section 2, subdivision 29, that the city shall have the right

and power:

"To incur indebtedness, by the issuance of bonds, for any of the purposes for which the city is authorized to provide, or for carrying out any of the powers possessed by the city; provided that, in the procedure for the creation of such bonded indebtedness, and for the issuance of such bonds, the general laws of the state of California, in force at the time such proceedings are taken, shall, so far as applicable, be observed and followed."

Upon the trial of these actions the court made its findings to the effect that substantially all of the allegations of the plaintiffs in each case and of the intervener were true, with the exception of those allegations attacking the constitutionality of the act of the Legislature approved June 1, 1921, or assailing the legality of the proposed sale of the remaining unsold portion of said bonds thereunder, or upon the terms proposed by said I. H. Hellman for the purchase by him of the whole of the later issue of said bonds. The court accordingly decided that the plaintiffs and intervener were entitled to take nothing by their respective actions, and that the defendants were entitled to judgment in their favor and for their costs. From these judgments the plaintiffs and the intervener, respectively, have prosecuted these appeals. of said city in question herein were proposed In order to reach a proper understanding and voted for by the electors of said city of the questions presented for consideration in conformity with the foregoing provisions upon these appeals, it is necessary that the several constitutional and statutory provisions involved in the discussion thereof should be set forth. Section 18 of article 11 of the Constitution of California provides:

The bonded indebtedness and bond issues

of its said charter, and of the act of 1901. The ordinances proposing each of said bond issues and calling the elections for the purpose of authorizing the same expressly provided that the maximum rate of interest to be paid upon the indebtedness evidenced by the first bond issue was to be 42 per centum per annum, payable semiannually, and by the second bond issue was to be 5 per cent. per annum, payable semiannually; and also expressly provided that said bonds should be issued in accordance with the provisions of the act of the Legislature of 1901.

In 1921 the Legislature adopted the act relating to the sale by municipalities of un

(203 P.)

sold bonds to which reference has heretofore been made. Section 1 of said act reads as follows:

"Section 1. Any county, city and county, city, town, district or other political subdivision organized under the laws of this state may sell any bonds thereof remaining unsold, and which have heretofore been authorized by the qualified

electors thereof at an election called and held as provided by law, at a price which will net the purchaser not more than the equivalent of six (6) per cent. per annum, payable semiannually, on the par value of such bonds; provided, that this act shall not apply to any such bonds which have been authorized under a law permitting the sale thereof at a price netting the purchaser more than such equivalent." Stat. 1921, p. 844.

its officials of a vital and essential condition upon which the permission of the electors of said city for the creation of said indebtedness and issue of said bonds were obtained.

[2] In arriving at this conclusion we are mindful of the argument put forth by the respondents herein to the effect that the provisions in the act of 1901, forbidding the sale of municipal bonds voted and issued under its procedure for less than their par value, is not to be found in that portion of said statute prescribing what shall be contained in the proposition to be submitted to the electors for their approval; such as the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the proposed public improvements, the The main contention of the appellants is rate of interest to be paid, and the like; and that both the statutes of the state and the hence is not an essential or mandatory porcharter and ordinances of the city of Los tion of said statute, nor one upon which the Angeles, having relation to the two bond isvoters were required to exercise their elecsues involved in the instant cases, do expresstion. This argument is neither persuasive ly prohibit the sale of said bonds for less than their par value; and the appellants nor sound. The electors of the city were adfurther contend that this express prohibition vised by its charter and by its ordinances reaches back to the very inception of the calling these bond elections that the law unproposition for the creation of a bonded in- der which the city and its electors were actdebtedness in each case, and enters vitally ing in the matter of the proposed creation into the vote of the electors of said city, of a bonded indebtedness and the issue and granting permission to its officials to create disposition of these bonds was the act of a bonded indebtedness and issue these bonds 1901, all of the provisions of which were preupon the express condition and understand-sumably known to every elector whose aping that they were not to be sold for less proval was sought thereon. We do not unthan their par value. derstand that it is essential, unless expressly made so, that all of the terms and conditions of the statute under which a bond election is to be held shall be set forth in the ordinances calling such election, or detailed upon the ballot submitting the main question to the voters for their approval; nor do we understand the case of People, etc., v. City of Los Angeles (Cal.) 200 Pa. 947, to so decide. It follows from the foregoing that any attempt on the part of said city or its officials to dispose of these bonds for less than their par value, while the state of the law under which the said indebtedness was proposed to and approved by the electors of said city remained unchanged, would have been abortive and could have been restrained at the suit of any property owner and taxpayer injuriously affected by such an act.

[1] The statute of 1901, under the terms of which the proceedings leading up to the creation of the municipal indebtedness evidenced by each of these bond issues were taken, does contain the express provision that municipal bonds isued in accordance with its procedure should not be sold "for less than their par value." The charter of the city of Los Angeles adopts the provisions of the general laws in force at the time as the procedure to be followed in providing for such indebtedness and for the issuance of such bonds. Stats. 1911, p. 2063. The ordinances of said city proposing these respective bond issues and providing the procedure for holding the required elections conformed to the provisions of the said act of 1901, and, while they do not expressly embrace the provision in said act that such bonds, when issued, should not be sold for less than par, they do so in effect by conforming to the general terms of said act and advising the electors that their permission to create such indebtedness and to issue such bonds is sought under its terms and conditions, among which is the express provision that the bonds so issued with their approval should not be sold for less than their par value. We are constrained, therefore, to hold that this express prohibition of the act of 1901 against the sale of the bonds in question at less than their par value forbids the violation on the part of the said city and of

[3] The respondents, however, contend that the law in relation to the price at which these respective bond issues were to be sold has not remained unchanged, and they direct our attention to the fact that the Legislature of this state has enacted the statute approved June 1, 1921, the title and provisions of which are above quoted, enabling municipalities to sell any of the bonds thereof remaining unsold at the date of the approval of said act at a price which shall net the purchaser not more than the equivalent of 6 per cent. per annum on the par value of