*1 defendant he found upon a retrial of the was fact judgment appeal guilty manslaughter App. 612 (People Huntington, 8 affirmed. de Furthermore, 760].) there evidence patient in the treatment fendant used instruments chiropractic physician did which his license as a negligence. In addi him to do. This in itself constituted testimony effect that the conditions tion, expert to the there care patient’s death were induced caused the incompetent deceased accorded the less treatment defendant. sup opinion
In our there is sufficient evidence manslaughter. port the verdict of judgment -is affirmed. Acting Houser, York, J., P. concurred judgment. Appellate District, July 6, Division No. 1653. Second
[Crim. Two. 1928.] Application ORVILLE GRAHAM Matter of In the Corpus. for Writ Habeas *2 Charles W. Cradick for Petitioner. Stephens, City Attorney,
Jess B. James L. Ronnow and Kitzmiller, Deputies Respondent. M. City Attorney, D. The petitioner
CRAIG, imprison- J. is under sentence of provisions ment for violated certain of an ordinance city Angeles. Los discharged He asks corpus, claiming habeas the ordinance is void. The provisions of question ordinance here are the early part 5, of section subdivision (a) of section paragraph first part section 12. The first of section 5 reads: “Permits provided be issued as in section allowing hereof to the owners of the vehicles herein defined awaiting employment vehicles while at stand designated places upon the, certain the streets of Angeles; Los ...” (a) provides:
Subdivision “It shall be unlawful for the or driver owner of the vehicles herein defined to stand or to cause or to such vehicles to stand while await- employment any place other than a stand by the Board of Transportation Public Utilities and assigned to the owner of said vehicle.” part
The first section is as follows: board in “The *3 grant shall deny its discretion have the any and permits all of the mentioned in this ordinance. ...” only petitioner contention of the requires our provisions claim is the that these concerning attention per- being partial oppressive void as mits are and and not operation, them, their and asserted, because of it is an arbi- placed trary power police commission, is in the hands of the provisions, violate certain and constitutional very not definitely apparently specified, but protecting those him from equal protection privileges a denial of of the law and the of citizens. petitioner
It is said that the position is not challenge constitutionality of the ordinance under whose prosecuted ground provisions he is on the it is dis therq criminatory, because is no that he has been subject nothing of discrimination. There is to indicate given any anyone had been else to stand at charged where he is with caused his taxi stand. Hence it seems clear cab to is in discriminatory the law position to is unless ground a law upon to render void dis sufficient through may occur its This, administration. crimination
91
if a
allows
law. He insists that
law
asserts,
munici
opportunity
of
for the exercise
discrimination
pal
regulation
of
authorities in
a lawful business it
unconstitutional,
per
long
se
and
void and
he cites a
list
many jurisdictions.
cases from
exami
However,
careful
nation of
few
these and other
with
authorities reveals that
exceptions
expounded
the doctrine
broad
them
enough
scope
principle
support
asserted
especially
law. This
the decisions from this
true
jurisdiction.
Here
the rule has been announced
positive
occupations
terms to
and busi
these
subject
nesses which
surveillance
police
regulation
delegation
power,
even
involv
municipal
discretion
grant
boards or
officers to
permits,
refuse
upon
theory,
will be sustained. This
supreme
stated
Flaherty,
our
court
In re
105 Cal.
558
529,
A.
38
981],
L. R.
Pac.
that: “Laws are not
[27
theory
depravity
of the total
those who
are elected
presumption
to administer
them;
is that
municipal officers will
powers
not use these small
villain
ously or for
purposes
oppression or mischief.” The
authority of
augmented by
this decision is
fact
repeatedly
approval
been referred to with
cases,
among
which are
re Dart,
1917D,
But, if there is doubt prelimi- of this merit nary objection interposed by respondents, regardless *4 conflict which exist jurisdictions, in other the cases above and others named import similar in this state have determined question presented merit of the main adversely and to petitioner. contention of In cases with things have to do dangerous to public health, uniformly comfort or welfare enactments have upheld regulating been the conduct of individuals as to inviolate right possessed whom natural, even special privileges persons. On particular result to hand, inher possessing instances where an one limited right ent to do act has a lawful and innocent been arbitrary right by an exercise the creation of held in an officer has or board the ordinance unlawful, discriminatory well and void. is This distinction pointed many other Flaherty, supra, out in In where re in a reviewed, are and to which called attention Dart, concurring opinion in In re supra.
Bearing and applying in mind and these distinctions principles, presented the issue here is not difficult of decision. highways Public and are the con streets travel and enjoyment of the citizens. The venience and demanding rights others, same to their use but he is might greatly privilege which inconvenience the a safety. No public impair its one has a natural and involving the from a business exclusion others to conduct public occupation street; particular area a ordinarily nuisance, constitute a but wants suggest public although in a broad pleasures public comfort and interference with convenience sense an may result, the maintenance stands should be taxicab special regulations. conditions It allowed authority council has the to be doubted cannot from the streets. As stands was said taxicab abolish Commission, Railroad Holmes v. the rule which reason for authorizes the state “The
486]: highways private use of the such carriers prohibit are they common carriers. It not that public highways, private use of which are making a public open paid for and are alike to all owned applies taxicab stands as well This as to making private in which an individual other instance highways, use which would be subversive use public. rights members of the of other require extended obvious discussion that if is too only all, privilege to be such a regulation. petitioner’s theory If were cor- entitled a taxicab stand all citizen is rect, easy right, conceive dozens others might see fit claim a stand on the taxicab drivers bring great about traffic, thus corner, obstruct
93 endanger inconvenience, seriously property and public persons. others, subject, many this
It obvious that like regulate possibly could one which enactment efficiently. Other matters similar character which properly adminis been held confided to the discretion of an where, public street or board officer are on the trative private property, glass, etc., might deposited, rubbish, be on Casinello, buildings parte 538; 62 Ex Cal. in what wooden repairs might parte certain fire Ex within limits be made, Fiske, regulation 72 125 Pac. 310], Cal. of noises [13 streets, Flaherty, In supra; operation the traveled re on public highways, motor vehicles Holmes v. Railroad Com See, following mission, supra. also, involving general principles: Guerrero, In 69 same re Cal. 88 Pac. [10 261]; parte 94; Ex 54 Frazer, parte Moynier, Cal. Ex 65 33 728]; Christensen, Pac. parte Cal. Ex 85 208 Cal. [2 [24 parte ; Tuttle, Pac. Ex 91 589 747] 933]. [27 import might Dozens of authorities of similar from cited jurisdictions, many of which are enumerated re Flaherty, supra. necessary to discuss by peti each decision cited
tioner law has been held unconstitutional grounds here under consideration. In so far as -those concerned, courts California mentioned exception without they uphold rights property inherent inviolate only. is true of his citations of decisions of the United Especial court. supreme, States placed reliance is on Yick Hopkins, Wo v. 118 U. 374 S. L. Ed. 220, Sup. 6 [30 Ct. Rep. 1064, also, see, Notes], Rose’s U. S. but the limitation authority of that decision has been by our determined supreme parte Fiske, court Ex supra, in which it was language “It is evident from this said: that the decision mainly against rested the admitted discrimination persons in class administration of the ordi Indeed, facts, nance. admitted which the court con sidered, showed intent of the ordinance was to Chinamen from exclude open a business which should be clearly persons, all as boldly intent had been writ decision, therefore, on its ten face. The as an (mihoriiy, that, than goes no further to hold under state facts case, character to the similar in facts of that an ordinance passed upon similar in there character the one in the case at bar.” invalid. But there are "no such facts (Italics as quoted.) Instead,
Nor here. record do exist language Kuykendall, S. 307 Buck U. 286], applies. Sup. Rep. 324, 38 A. L. Ed. Ct. R. L. “ may have, A The rule there stated is: ... citizen *6 right transport amendment, the fourteenth the to travel (the public highways) by auto property them his vehicle, right highways but his he has to make the by using carrier hire. of business them as a common for privilege use is a which or withheld Such by discretion, violating state without either the in equal process protection clause or clause.” due question upon attacks the ordinance in Petitioner grounds. regard possessing merit, We it as do closing it is for the in his brief since stated first time unnecessary objection presented. to discuss the it is discharged, to The writ remanded custody. judgment
WORKS, Concurring. I concurin the P. everything exceptions, in and, one two that is said with Craig. opinion of Justice in the proceed unnecessary disposing it to in I think opinion, specified in in certain ing, as said " upheld uniformly regulating have been enactments natural, as to whom no of individuals inviolate conduct privileges might special possessed even was language mean, I this particular take to to result situation, present reducing it to the terms conferring privileges streets, may in authorities, in belonging persons class, between to discriminate unnecessary me seems to pronouncement for such claim make no he can was sub reason petition merely alleges discrimination. The jected to such a his under confinement reason of petitioner is 5a guilty of section of a violation the ordi found been foregoing opinion, which we con to referred nance arguments briefs, contained as a strue, under "5, (a) section there is no to subdivision reference is no ordinance. There 5a contained in the section causing petition a vehicle to stand whatever awaiting employment, permitting “while it to stand . place other than a stand Board . . [some] assigned vehicle,” de- to owner said the offense encroaching (a), petitioner nounced subdivision was assigned had been owner of vehicles area which to the petition other than that owned or him. driven then, alleging guilty and construed, that he was found imprisoned space he in a because stood cab assigned as a stand to had been no owner of vehicles. circumstances, Plainly, could have subjected drivers, no discrimination, been as all other cab standing if place occupied by Ms, their cabs subjected pains the same as those suffers. think,
I for the preceding para- reasons stated the last unnecessary disposition graph, it is to a proceeding foregoing opinion include in following “If matter: theory petitioner’s correct, were citizen is en- titled a taxicab stand right, all others have the same easy conceive that dozens of taxicab drivers see fit claim stand *7 corner, and thus ob- bring great traffic, struct about inconvenience, and seriously endanger property For the reasons given above required we not now say whether or not all owners of taxicabs have upon the principle some rotation, instance, upon of for or some principle imagined, occupy might be what be im- conceded as measurably greatest the best and the producing revenue Angeles. stand in the of Los Therefore, I feel un- necessary present for the myself to commit upon ques- the tion.
Having my thus foregoing limited concurrence the I think opinion, it not inappropriate something, what Craig addition to said, upon point Justice has the petitioner that the ordinance unconstitutional petition because it granting confers body powers susceptible that are of a discriminatory I think exercise. petitioner position no question. to raise such a strange, petition would be as the must be construed as show- no invasion an established stand petitioner, if petition could contend that granting body might act applications granting arbitrarily in the future imprison- arrest and establishment stands. Petitioner’s petition, resulted, a construction his ment spaces placing from his his cab at outside There is conten- already had teen as stands. justly fairly granting petition body tion that power locating discharged duty As the these stands. susceptible granted surely just exer- the ordinance to that cise must well-known rule presume, we performed effect, properly duty that official has been petitioner stands from which therefore established judiciously strayed had time of his arrest were indiscriminatorily circumstances sur- located. Under rounding look to the arrest, his I think urge past and cannot be heard occurrences good any case, point, whether not it unfairly possibly ordinance peti- truth, I conclude that the exercised in the future. fails to state facts sufficient entitle tion relief he asks. (IRA F.), Concurring. I concur
THOMPSON opinion I judgment solely am of the because showing allege he has been discrimi- a situation fails to susceptible against, ordinance nated however, convinced, I am discriminatory exercise. so of a sun to on the evil “maketh rise even as the Creator just un- good, rain on the and the and on and sendeth be made to laws and ordinances just,” even so must the nonelect, I cannot operate alike elect intimating arbitrary language discrimination assent to legislation subject is not natural when permissible right.