Harley v. Heyl
Before: Andersos
Synopsis
Appeal from the Fourth Judicial District.
The complaint states that the Legislature at its last session passed an act to provide for the erection of a powder magazine in the city of San Francisco; and plaintiff avers that he is the B. F. Harley in the said act named; and that he had erected at his own expense a powder magazine at San Francisco at a point sanctioned by the mayor of said city, which was ready for use on the 2d July, 1852; and that he gave notice of such erection as provided by the act; and that he, on the 27th April, 1852, was appointed superintendent of said magazine by the Governor of the State; and avers that since the passage of the said act, the Common Council of the city have not authorized the building of any magazine, or appointed a superintendent; and avers that defendant now has in storage in said city in a building other than the said magazine over 1000 kegs of powder, and is constantly receiving powder on storage, and refuses to desist from so doing, &c., or to deliver the same to the plaintiff; which is acting in violation to the said act, and to the damage of plaintiff ; and unless restrained, he will continue to receive the same to the injury of plaintiff. The plaintiff therefore prays for an injunction to restrain defendant from receiving and storing powder, &c. Complaint filed 24 July, 1852; and defendant ordered to show cause, &e.
The defendant came into Court, and being sworn, said, that since the 15th of November, 1851, he has been engaged in receiving and storing powder in a magazine erected within the city, under a joint resolution of the Common Council of the said city, passed Nov. 13th, 1851; that he is the same Heyl mentioned therein, and continues to receive and store, &c., and the same is done solely by the authority of the Common Council of the city as aforesaid.
Annexed to the complaint, was filed a copy of the act therein referred to, which enacts, sect. 1, that “ B. F. Harley is hereby authorised to erect, at his own expense, a powder magazine, in the vicinity of San Francisco, at such place as shall be sanctioned by the mayor; provided that the said magazine may be used by the State of California free from all charge, for the deposit of such arms and amunition as the governor may direct to be stored therein.
Sect. 2nd. That after twenty days notice shall have been given in the newspapers of the city, by the superintendent, no person shall keep, in any one house or place within said limits, more than five pounds of gunpowder, at any one time, under penalty of $100.
The 3d, 4th, 5th, 6th, and 7th sections, regulate the sale of powder in the city.
Section 8. The governor shall appoint a superintendent of the powder magazine, who shall hold his office two years.
[481]The opinion of the Court was delivered bj
Andersos, Justice. This case comes up under the act passed at the last session of the legislature, entitled “ an act to provide for the erection of a powder magazine in San Francisco.” The first section provides, that B. F. Harley is authorized to erect, at his own expense, a powder magazine in the city of San Francisco, under the direction of the mayor.
Under the second section he claims the exclusive privilege of storing all powder within the limits of said city, except such limited quantities as it otherwise provides, may be kept by other houses. That section is in the following words. “That after notice of twenty days in the newspapers of said city, having been given by the superintendent of the magazine of the erection thereof, as provided for by this act, no person shall keep in any one house, or place, within said limits more than five pounds of gunpowder at any one time, under a penalty of §100 for each offence.” The third section extends the right of keeping powder to the amount of twenty-five pounds.
It is insisted under these provisions, that B. F. Harley possesses the exclusive privilege of storing all powder in the city held by any person, over the amount of twenty-five pounds. And that any act of the city authorities of San Francisco, prior to the passage of the late law under consideration authorizing the erection of other magazines, or giving a license or grant to any other person to store any greater quantity of powder than is within the limits designated, is null and void.
This interpretation therefore would put an end to the regulations upon this subject, which were made conformably to the charter prior to the passage of the late act; and by the same rule it would follow, that such regulations can only be made legally by the exercise of the same power first asserted to be destroyed, and then reconferred at the same time—but enacted subsequent to the latter.
But such was clearly not the design of the legislature. The existing regulations made by the city under its respective charters, prior to that act, were not intended to be disturbed. If we construe the several charters of the city, and the late act pari materia-, the previously established policy would hold, and the [482]
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)