I dissent.
I adopt that portion of the opinion of the District Court of Appeal, Second District, Division One, which refers to the lack of service on John B. Leonis, as part of my dissent in this case.
“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 citees 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. *533Leonis . . . 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 proceeding 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 *534the defendant is charged as a private individual or, as in the present ease, 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 accepted 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 eouncilmen, 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.”
Insofar as the merits of the case, are concerned, I feel that aside from the lack of service of process so far as Mr. Leonis is concerned, the judgment of contempt should be annulled for the reasons set forth in my dissenting opinion in City of Vernon v. Superior Court, ante, p. 522.
Petitioner’s application for a rehearing was denied April 2, 1952. Carter, J., was of the opinion that the application should be granted.