In re MAGNUS J. PETERSEN, on Habeas Corpus, 51 Cal. 2d 177

GIBSON, C. J. 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.

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. ‘‘ (

a) Stand on any public street or place other than or upon a stand designated or established in accordance with the provisions of Sections 1115 to 1160, inclusive, of this Chapter, ...” 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 Marsec, 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 Brunibach, 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, Ann.Cas. 1912D 1267, 35 L.E.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 unconstitutional 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 owners 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 discriminator;7. 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, 38 A.L.K.. 286] ; Holmes v.

Railroad Com., 197 Cal. 627, 633 [242 P. 486].) This rule was relied upon in the ease 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, Ann.Cas. 1914A 152] [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 Co. v.

City of Chicago, 242 U.S. 526 [37 S.Ct. 190, 61 L.Ed. 472] [large billboards in residential street] ; of. 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 passen- gers 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 disadvantages 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 legislative body cannot confer unlimited power upon an officer without designating standards to guide his action. (Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 641-642 [91 P.2d 577].) However, there are limitations on the general rule which are applicable to the case before us.

The granting of discretionary power, not restricted by specific standards, to confer or deny licenses or permits has been upheld in a variety of situations where the licensed activity, because of its dangerous or objectionable character, might be regulated or restricted to certain localities. (Parker v.

Colburn, 196 Cal. 169, 177-178 [236 P. 921] [permit for public garage]; In re Holmes, 187 Cal. 640, 646-647 [203 P. 398] [permit for dealer in second-hand merchandise]; Ex parte Christensen, 85 Cal. 208, 213 [24 P. 747] [license as a retail liquor dealer]; Ex parte Fiske, 72 Cal. 125,127-128 [13 P. 310] [permit to alter or repair wooden buildings within the fire limits] ; City of South Pasadena v. City of San Gabriel, 134 Cal.App. 403, 407 [25 P.2d 516] [permit to drill for water] ; Bleuel v. City of Oakland, 87 Cal.App. 594, 597 [262 P. 477] [permit for the operation of a riding academy] ; Boyd v.

City of Sierra Madre, 41 Cal.App. 520, 525-526 [183 P. 230] [permit for mule corral in business district] ; People v. Amdur, 123 Cal.App.2d Supp. 951, 962-964 [267 P.2d 445] [permit for temporary obstruction of sidewalk] ; see Sunny Slope Water Co. v. City of Pasadena, 1 Cal.2d 87, 96 [33 P.2d 672].) This limitation on the general rule was applied in the case of In re Graham, supra, 93 Cal.App. 88, 91, in sustaining a discretionary power, not governed by any standards, to grant and refuse permits to occupy taxicabs stands. Similarly, an earlier form of the ordinance attacked here was upheld in People v.

Galena, supra, 24 Cal.App.2d Supp. 770, 779 et seq. The absence of express standards in such situations does not mean that the licensing agency may act arbitrarily or oppressively; it is presumed that the agency will duly perform its public duty, but an abuse may be shown and relief obtained in the courts. (In re Holmes, supra, 187 Cal. 640, 647; Gaylord v. City of Pasadena, 175 Cal. 433, 440 [166 P. 348] ; Roussey v. City of Burlingame, 100 Cal.App.2d 321, 326 [223 P.2d 517] ; Bleuel v. City of Oakland, supra, 87 Cal.

App. 594, 600.) No arbitrary or oppressive exercise of discretion by the chief of police, to the detriment of petitioner, has been shown in this ease. Moreover, standards for administrative action can sometimes be found by implication. In Rescue Army v. Municipal Court, 28 Cal.2d 460, 471 [171 P.2d 8], where an ordinance requiring a permit was involved, we held that sufficient standards were inherent in the reasons which must have led to the adoption of the ordinance.

In the present case it is clear that the purpose of controlling taxicab stands by issuance of permits is to make satisfactory and orderly taxicab service readily available to the public without unnecessary obstruction of traffic. This purpose supplies standards which the chief of police must observe in granting or denying the permits. It is difficult to see how, as a practical matter, any additional standards could be set forth which would promote the objective of the ordinance, and nothing would be accomplished by requiring that the standards which are implied must be made express. The writ is discharged.

Shenlc, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.

Section 1119 of the Police Code of the City and County of San Francisco provides: “Stands for Taxicabs, Etc.—Regulations, (

a) Stand Designated by Chief of Police. In addition to the stands provided for in Sections 1117 and 1118 and consistent with the provisions of

Section 1118 of this Chapter, the Chief of Police may designate in writing, stands on public streets to be occupied by taxicabs, sedans, limousines and sightseeing buses, after permit to operate said vehicle or vehicles has been issued and the license fee has been paid as in this Chapter, or other sections of the San Francisco Municipal Code provided. ‘ ‘ (

b) Consent of Tenant Required. Before any designation of stands is made by the Chief of Police as provided in this section, the written consent of the tenant or lessee of the ground floor or portion of the ground floor fronting the space where such stand is to be located must first be obtained.

In the event the ground floor or the portion of the ground floor fronting the space where such stand is to be located is not occupied by a tenant or lessee, then the written consent of the owner of the building fronting the space where such stand is to be located must be first obtained. “The stand permit shall specify the name and address of the permittee and the number of vehicles and class and character of service authorized thereunder.

No vehicle licensed to operate pursuant to this Chapter, while awaiting employment by passengers, shall stand on any public street at a place other than upon a stand designated and established in accordance with the provisions of this Article, and no such vehicle shall occupy such stand unless it is licensed to do so. It shall be unlawful for the owner or operator of any public passenger vehicle for hire, other than the permittee, to use the stand designated under such permit. “ (

c) Number of Machines Designated by Chief of Police. The Chief of Police shall designate the number of taxicabs, sedans, limousines or sightseeing buses that shall be allowed to stand at any one time at any of the places designated or authorized. “(

d) Revocation of Stand Permits. Any stand permit may be revoked by the Chief of Police, without notice to any person except the holder of the permit, and it shall be unlawful for any person, firm or corporation to occupy a stand with a taxicab, sedan, limousine or sightseeing bus after such notice or revocation has been made. “ (

e) Eevoeation of Permit by Chief of Police. Any stand designated by the Chief of Police as provided in this

section may be revoked at his pleasure; and it shall be unlawful for any person, firm or corporation to occupy said stand with a taxicab, limousine or sedan, after such revocation has been made and notice thereof given.”

Section 1156 of the Police Code of the City and County of San Francisco provides: “No driver of any taxicab, limousine or sedan, while awaiting employment by passengers, shall do any of the following: The provision of subdivision (

d) of

section 1119 which gives the chief of police power to revoke stand permits “at his pleasure’’ is not directly involved in this ease. It has been held that such a provision means that the licensing agency may act only in the exercise of a wise discretion, not that it may act capriciously. (Marrone v. City Manager of Worcester (Mass.), 108 N.E.2d 553, 554; People ex rel. Curtis v. Hogeboom, 185 App.Div. 777 [173 N.T.S. 417] ; MacDonald v. De Waele, 263 Mich. 233 [248 N.W. 60S, 606].)