Pacific States Supply Co. v. City and County of San Francisco

• Decision Date: 26 July 1909
• Docket Number: 14,811.
• Citation: 171 F. 727
• Parties: PACIFIC STATES SUPPLY CO. v. CITY AND COUNTY OF SAN FRANCISCO et al.
• Court: U.S. District Court — Northern District of California

171 F. 727

PACIFIC STATES SUPPLY CO. v. CITY AND COUNTY OF SAN FRANCISCO et al.

No. 14,811.

United States Circuit Court, N.D. California.

July 26, 1909

This is an application by the complainant for an injunction pendente lite to restrain the defendants, the city and county of San Francisco and its chief of police, from interfering by arrest or otherwise with the officers and employes of the complainant in operating a rock quarry and rock crushing plant within the municipality.

So far as material to be stated, the amended bill alleges, in substance: That at all times covered by its allegations the complainant was in possession of certain lands therein described situated within the corporate limits of the city and county of San Francisco, holding the same under a 10-year lease from April 1, 1907, upon which is situated a deposit or quarry of rock of value for use and sale for use in the construction of buildings and other designated purposes, and for which there was great demand, with the right in complainant to extract, use, and dispose of the same for such purposes; that upon said property complainant has an extensive plant, consisting of all necessary machinery and appliances for the removal and crushing of such rock; that but for the defendants' acts and interferences complained of complainant's rights under said lease would be of a value of over $50,000, and its said plant of a value of over $28,000; that the value of the matter in controversy greatly exceeds the sum of $2,000; that it is necessary to the successful and proper operation of said quarry that blasting powder or dynamite be used in blasting thereon to detach and remove the rock therefrom, and for that purpose to keep and store thereat a sufficient quantity of such explosives for such requirements; that the rock crushing plant cannot be successfully operated otherwise than by the use of steam electric, or other motive power; that the operation of said quarry and said plant by the means aforesaid can be safely carried on without danger, inconvenience, discomfort, or injury to persons or property; and that at the time of the interference complained of, and for some time prior thereto complainant was working and had worked said quarry and blasted and removed the rock therefrom and crushed the same on said premises without causing any such injury or damage.

It is alleged: That in October, 1908, the defendants wrongfully and unlawfully and without any authority or right so to do notified complainant that it would not be permitted to blast in said quarry, or drill holes therein, or to crush rock thereat, or to 'in any way' operate the same; that if complainant should attempt to further carry on such work defendants would arrest the officers, employes, and servants of the complainant and all persons connected in any way with the operation of said quarry, and would make such arrests upon each and every occasion that any attempt should be made to so operate the said quarry; that defendants stationed and maintained policemen at said quarry to prevent the operation of the same, and arrested the servants of the complainant for drilling in said quarry, and prevented and still prevent complainant, its officers, servants, and employes, from 'in any way' operating the said quarry or rock crushing plant; and that by reason of such acts of defendants the complainant is wholly deprived of the use and enjoyment of its rights under its lease of said property and the use of its said plant.

It is alleged: That the defendants justify their refusal to permit the complainant to blast, drill, or crush rock at the said quarry under four certain ordinances of the city and county of San Francisco which are set out in full in the bill, the material part of the first of which, known as the 'blasting ordinance,' makes it a misdemeanor 'for any person, firm, or corporation to explode or cause to be exploded, any powder or other explosive material for the purpose of blasting, or drill a hole, or make a crevice, for the purpose of inserting any powder or other explosive material for the purpose of blasting, or insert in any hole or crevice any fuse or any powder, or other explosive material for the purpose of blasting, without first obtaining from the board of supervisors a permit so to do, which permit must specify the location of the blast or blasts for which it is granted,' and providing for the giving of a bond by the applicant before receiving a license, for the protection of any person or property injured by the acts done under such permit. The second makes it a misdemeanor for any person, company, or association to maintain or operate any rock or stone quarry within certain designated portions of said city and county, within which designated territory it is alleged that complainant's quarry is situated. The third makes it a misdemeanor for any person, company, or association to establish, maintain, or use any rock crushing machine 'operated by steam, gas, electric, vapor, or other motive power,' within a certain designated portion of said city and county, within which territory, it is alleged, the complainant's quarry and plant are situated. And the fourth makes it a misdemeanor for any person, firm, company, or corporation 'to manufacture, or cause to be manufactured, or bring or cause to be brought into, or receive or keep or store, or suffer to remain within the limits of the city and county of San Francisco, any blasting powder, hercules or giant powder, nitroglycerin, daulin, dynamite, or any other explosive liquid or material or compound, having an explosive power greater than that of ordinary gunpowder,' except within a certain designated portion of said city and county, without which designated territory, as alleged, complainant's quarry is situated.

As to the first of the ordinances above referred to, it is alleged: That it is contrary to section 1 of the fourteenth amendment to the Constitution of the United States, and arbitrarily and unlawfully interferes with the use of said property by complainant, and with the lawful occupation of complainant in working the same, and imposes unusual and unnecessary restrictions upon such lawful occupation, in that it contains no regulations, rules, or conditions whatsoever for the granting of a permit to do any of the things prohibited thereby, but leaves the question of granting such permit to the arbitrary discretion and determination of the board of supervisors of said city and county, and does not admit of the doing of any of the said prohibited acts by all citizens alike who will comply with certain prescribed regulations, rules, or conditions. That ever since it was enacted it has been, and still is, applied and administered by defendants with an unequal hand and with unjust and illegal discrimination between persons in similar circumstances, material to their rights, in that the board of supervisors of said city and county has granted, and still does grant, permits for the doing of all said prohibited acts in various parts of the city and county, and in locations where such acts cannot be done as safely and as free from danger as regards the interest and welfare of persons and property as the same can be done at the quarry of complainant; a number of specific instances of the granting of such permits to parties other than the complainant for the carrying on of like operations being set forth in the bill. And it is alleged that by reason of the character of said ordinance and the arbitrary, unjust, and discriminating manner of its enforcement, it unlawfully abridges the privileges and rights of complainant as a citizen of the United States, deprives it of its property without due process of law, and denies it the equal protection of the law, contrary to section 1 of the fourteenth amendment of the Constitution of the United States. Similar allegations, so far as pertinent to their terms, are made as to the illegality of and the arbitrary and unequal manner of administering each of the other ordinances referred to.

It is further alleged: That notwithstanding the invalidity of said several ordinances complainant, after the commencement of the interferences alleged, in order to prevent a repetition of the same and avoid the necessity of resorting to a court of equity, filed a petition with said board of supervisors setting forth the location of its quarry, and its situation with reference to other surrounding property and other proper facts in relation thereto tending to sustain complainant's right to a permit to operate the same and requested the said board to examine said quarry and inspect the manner of working the same by complainant and to thereupon grant a permit to operate the same; 'but that the said board of supervisors arbitrarily and unreasonably refused to consider the said petition or to allow your orator to show it the manner in which it proposed to drill holes, blast rock, and crush rock at said quarry, and arbitrarily and unreasonably refused to consider the rights of your orator in the premises or to grant your orator any permit to operate the said quarry. ' And it is alleged that, unless defendants are restrained from the acts and interferences complained of, they threaten to and will continue to prevent the complainant, its officers, employes, and servants, from operating the said quarry, and will thus entirely deprive complainant of the use and enjoyment of its property. An injunction both preliminary and final is prayed.

In response to the order to show cause, defendants appeared, by the city and county attorney, and demurred to the bill on several grounds, including that of want of equity, and likewise presented a large number of affidavits in opposition to the granting of the writ. These latter having been...