In Re Graham

The petitioner is under sentence of imprisonment for having violated certain provisions of an ordinance of the city of Los Angeles. He asks to be discharged on habeas corpus, claiming that the ordinance is void. The provisions of the ordinance here in question are the early part of section 5, subdivision (a) of section 5, and the first paragraph of section 12. The first part of section 5 reads: "Permits may be issued as provided in section 12 hereof to the owners of the vehicles herein defined allowing any such vehicles while awaiting employment to stand at certain designated places upon the streets of the city of Los Angeles; . . ."

Subdivision (a) provides: "It shall be unlawful for the owner or driver of any of the vehicles herein defined to stand or to cause or to permit such vehicles to stand while awaiting employment at any place other than a stand designated by the Board of Public Utilities and Transportation and assigned to the owner of said vehicle."

The first part of section 12 is as follows: "The board in its discretion shall have the power to grant or deny any and all of the permits mentioned in this ordinance. . . ."

The only contention of the petitioner which requires our attention is the claim that these provisions concerning permits are void as being partial and oppressive and not general in their operation, and because of them, it is asserted, an arbitrary power is placed in the hands of the police commission, and that they violate certain constitutional provisions, not very definitely specified, but apparently those protecting him from a denial of equal protection of the law and the privileges of citizens.

[1] It is said that the petitioner is not in a position to challenge the constitutionality of the ordinance under whose provisions he is prosecuted on the ground that it is discriminatory, because there is no showing that he has been the subject of discrimination. There is nothing to indicate that any permit had been given to anyone else to stand at the place where he is charged with having caused his taxicab to stand. Hence it seems clear that the petitioner is in no position to say that the law is discriminatory unless it is sufficient to render a law void upon the ground that discrimination may occur through its administration. This, *Page 91 petitioner asserts, is the law. He insists that if a law allows an opportunity for the exercise of discrimination by municipal authorities in the regulation of a lawful business it is per se void and unconstitutional, and he cites a long list of cases from many jurisdictions. However, a careful examination of these and other authorities reveals that with few exceptions the doctrine expounded by them is not broad enough in its scope to support the principle asserted to be the law. This is especially true of the decisions from this jurisdiction. [2] Here the rule has been announced in positive terms to be that in these occupations and businesses which are the proper subject of police surveillance and regulation the delegation of power, even though involving discretion to municipal boards or officers to grant and refuse permits, will be sustained. This is upon the theory, as stated by our supreme court in In re Flaherty, 105 Cal. 558 [27 L.R.A. 529, 38 P. 981], that: "Laws are not made upon the theory of the total depravity of those who are elected to administer them; and the presumption is that municipal officers will not use these small powers villainously or for purposes of oppression or mischief." The authority of this decision is augmented by the fact that it has repeatedly been referred to with approval by other cases, among which are In re Dart, 172 Cal. 47 [Ann. Cas. 1917D, 1127, L.R.A. 1916D, 905, 155 P. 63]; Gaylord v.Pasadena, 175 Cal. 433 [166 P. 348]; In re Holmes, 187 Cal. 640 [203 P. 398]. If the petitioner had applied for a permit under the section of the ordinance in question, and had his application been arbitrarily or capriciously refused, he would then have been entitled to secure relief from such unjust action through the courts. (Gaylord v. Pasadena, supra; In re Holmes,supra.)