BENJAMIN T. HARLEY, Appellant, v. WM. S. HEYL, Respondent, 2 Cal. 477

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 city would still possess full and concurrent power upon this subject. The last

section of the late act shows that there was no purpose to curtail the powers of the city in this respect. It re-declares that power. To suppose, therefore, that so much of the charter of the city as conferred full power over the subject was intended first to be repealed, and then re-enacted, would be absurd. It was not a new creation of power by the first

section of that act, but was an enlargement of that particular power to the corporate authorities. The terms apply exclusively to the powder magazine. This may be considered as contradistinguished to the words “house, place, and building,” as used in the second and third sections of that act, clearly to signify private powers, places and buildings. Any other construction of the laws would be every way exceptionable, and would confound the established policy upon this subject, and the plainly declared will of the legislature.

They look to the Common Council of the city of San Francisco as a fit residuary of that police power. They designed to repeal nothing or they would have said so. The omission taken in connection with those views is conclusive. If we further pursue the distinction as we should, between the phraseology in the second and third sections of the late act, in comparison with the language of both the old and new charters, it will also be obvious that the former had simply reference to private houses and places not licensed or sanctioned as magazines by the city; and the last

section of the act, by repeating that power as contained in those charters, was evidently made with a view to protect the authority of the city against any contrary construction. Under the old charter, the city possessed the power of licensing and sanctioning such magazines; and the same is also true of the last charter. That power remains. Any other

interpretation than this would be contrary to long established rules, by which we must be guided in comparing laws upon the same subject. The Court below granted a rule to show cause why an injunction should not issue in this case against Heyl, and upon final Fearing, discharged that rule. ' The order of the Court below was right. Let it be confirmed, with costs.