Petersen, In re

• Citation: 51 Cal.2d 177,77 A.L.R.2d 1291,331 P.2d 24
• Decision Date: 31 October 1958
• Docket Number: Cr. 6215
• Court: United States State Supreme Court (California)
• Parties: , 77 A.L.R.2d 1291 In re Magnus J. PETERSEN.

Page 24

331 P.2d 24

51 Cal.2d 177, 77 A.L.R.2d 1291

In re Magnus J. PETERSEN.

Cr. 6215.

Supreme Court of California, In Bank.

Oct. 31, 1958.

Rehearing Denied Nov. 26, 1958.

Lewis, Field, DeGoff & Stein and Marvin E. Lewis, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Thomas C. Lynch, Dist. Atty., Dion R. Holm, City Atty., and George E. Baglin, Deputy City Atty., San Francisco, for respondent.

Ackerman, Johnston, Johnston & Mathews and Philip S. Mathews, San Francisco, as Amici Curiae on behalf of respondent.

GIBSON, Chief Justice.

This proceeding in habeas corpus involves sections 1119 and 1156 of the Police Code of the City and County of San Francisco. Under section 1119 the chief of police may designate stands on public streets to be used by taxicabs, if the written consent of the person who occupies the ground floor of the building fronting the proposed stand is first obtained; a permit shall specify the name of the permittee and the number of vehicles authorized to use the stand at any one time, and it shall be unlawful for the owner or operator of any public passenger vehicle for hire, other than the permittee, to occupy the stand. ¹ Section 1156 provides, in part, that a driver of a taxicab shall not wait for employment by passengers on any public street or place except at a stand designated or established in accordance with the provisions of sections 1115 through 1160 of the Police Code. ²

Petitioner was arrested when he parked a taxicab owned by the Veterans Cab Company in a stand which had been designated as a Yellow Cab Company stand, and, at the time he instituted this proceeding, he was being held for trial on a charge of violating sections 1119 and 1156. While we were considering his petition and before we issued the writ, the municipal court admitted him to bail. The questions presented are whether habeas corpus is a proper remedy and, if so, whether sections 1119 and 1156 are constitutional.

It is settled, of course, that habeas corpus is available to test the constitutionality of legislation under which a petitioner is held. In re Florance, 47 Cal.2d 25, 28, 300 P.2d 825; In re Bell, 19 Cal.2d 488, 495, 122 P.2d 22. Respondents contend that the writ does not lie because petitioner has been admitted to bail by the municipal court. The availability of the writ, however, does not depend on actual detention in prison. Where a person has been released on parole, this court has issued habeas corpus, pointing out that he was constructively a prisoner subject to restraint by the penal authorities. In re Harincar, 29 Cal.2d 403, 408, 176 P.2d 58; In re Marzec, 25 Cal.2d 794, 797, 154 P.2d 873. Petitioner here is also constructively in custody and subject to restraint since the primary purpose of bail, whether before or after conviction, is practical assurance that he will attend upon the court when his presence is required. See In re Brumback, 46 Cal.2d 810, 813, 299 P.2d 217. Moreover, this court may admit a petitioner to bail pending determination of habeas corpus proceedings (Pen.Code, § 1476), and it would be unreasonable to hold that we lack jurisdiction to issue the writ merely because another court has released him on bail after the filing of his petition. We conclude that, under the circumstances present here, habeas corpus is an appropriate remedy even though bail has been allowed. The cases of Matter of Ford, 160 Cal. 334, 342, 116 P. 757, 35 L.R.A.,N.S., 882; Ex Parte Schmitz, 150 Cal. 663, 89 P. 438; In re Gilkey, 85 Cal.App. 484, 259 P. 766, and In re Ortiz, 71 Cal.App. 153, 234 P. 877, are disapproved insofar as they are inconsistent with this conclusion.

Petitioner urges that sections 1119 and 1156 of the Police Code are unconstitutioner on the following three grounds: (1) the establishing of a stand for the exclusive use of one permittee constitutes an unreasonable exercise of the police power and violates the equal protection clause, (2) the requirement of previous consent of the occupant of the adjacent real property is an improper delegation to a private person of power to decide who may have a taxicab stand on the public streets, and (3) the provision which grants the chief of police discretion to designate exclusive stands fails to prescribe any standards to guide him in that respect.

Section 589.6 of the Vehicle Code specifically empowers local authorities to regulate taxicab stands on the streets. Ordinances are presumed to be valid, and no provision of the challenged ordinance may be condemned as an improper exercise of the police power if any rational ground exists for its enactment. Hart v. City of Beverly Hills, 11 Cal.2d 343, 348, 79 P.2d 1080; Parker v. Colburn, 196 Cal. 169, 178, 236 P. 921. In this connection it is apparent that taxicab stands for the exclusive use of one permittee may, from the point of view of the public interest, have advantages over stands open to all. If many cabs of different owenrs should try to park at one stand, an obstruction of traffic might result. The sole permittee who has a telephone connection with its exclusive stand would be in a better position to maintain a constant cab service at the stand, without an excessive supply of cabs at some times and a dearth at others. Exclusive stands may facilitate police supervision and may prevent disorderly and aggressive solicitation of one customer by drivers of different taxicab owners. Accordingly, we cannot agree that there are no rational grounds for the establishment of exclusive stands.

Nor can we agree that the granting of such stands to one permittee is invalidly discriminatory. The use of highways by a common carrier is a privilege which may be granted or withheld by the state in its discretion, without violating either the due process clause or the equal protection clause. Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623; Holmes v. Railroad Commission, 197 Cal. 627, 633, 242 P. 486. This rule was relied upon in the case of In re Graham, 93 Cal.App. 88, 93, 269 P. 183, where the court declared that a city council has the authority to abolish taxicab stands from its streets. It has also been recognized that, in general, the government has power to grant exclusive rights to engage in services of a public character as contrasted with an ordinary business or profession. See Matter of Russell, 163 Cal. 668, 674-675, 126 P. 875 (reversed on another point in Russell v. Sebastian, 233 U.S. 195, 34 S.Ct. 517, 58 L.Ed. 912); 1 Cooley's Constitutional Limitations (8th ed. 1927), p. 580; 12 Am.Jur. 227-228; 23 Am.Jur. 727; 22 Cal.Jur.2d 659.) The power to establish exclusive stands contained in an earlier form of the ordinance here under consideration was upheld as a regulation conducive to the general welfare comparable to the granting of an exclusive franchise. People v. Galena, 24 Cal.App.2d Supp. 770, 785, 70 P.2d 724. It seems obvious that, since a municipality may deny the use of its streets to all but one common carrier, it may validly direct that each of several taxicab owners use separate stands.

The requirement of consent of the occupant of the adjacent real property does not render the ordinance unconstitutional. Such a requirement is proper where the proposed activity is otherwise prohibited and the prohibition is a reasonable exercise of the police power. Cusack Company v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (large billboards in residential street); cf. Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620, affirming Ex parte Christensen, 85 Cal. 208, 24 P. 747 (retail liquor business). It is pointed out in the Cusack case that a Chicago ordinance permitting the construction of billboards with the consent of interested property owners could not injure the complaining party because without such a provision the billboards would have been absolutely prohibited. In San Francisco the only provision of the Police Code for the designation of taxicab stands, aside from section 1119, is section 1117 which provides for 'public' stands at specified places not involved in the present case, such as wharves and railroad depots. Section 1156 prohibits drivers from awaiting employment by passengers in a place on the street which has not been designated as a stand. This section, which is clearly a reasonable exercise of the police power, would have prevented petitioner from awaiting employment on the streets in any place other than a 'public' stand, if section 1119 had not created the possibility of the designation of additional stands with the consent of the occupants of adjacent property.

It cannot be said that the consent requirement is unreasonable because of the asserted lack of legitimate interest on the part of the occupant of the adjoining property. The presence of a taxicab stand in front of private property may be desired by some (e. g., hotel owners) and considered objectionable by others (e. g., home owners), and those who wish to have a taxicab stand in front of their premises are interested in orderly service at the stand and in good relations with the permittees. Under these circumstances it can reasonably be considered in the interest of harmonious relations and good service to give effect to the preferences of the occupants of the property in designating stands and their permittees. If the consent system also has undesirable features, such as the power of the occupant to exact payment for his consent, the weighing of the advantages and disavantages is a matter of policy wholly within the legislative power of the municipality.

By requiring the consent of private persons the Police Code does not delegate to them the power to designate taxicab stands. The ultimate power remains in the chief of police, and the requirement of consent is only made a condition precedent to the designation.

With respect to the question of standards for administrative action the general rule is that a...