Amalgamated Oil Gas Corp. v. City and County of San Francisco

• Decision Date: 12 January 1920
• Docket Number: 392.
• Parties: AMALGAMATED OIL GAS CORPORATION v. CITY AND COUNTY OF SAN FRANCISCO et al.
• Court: U.S. Court of Appeals — Ninth Circuit

263 F. 617

AMALGAMATED OIL GAS CORPORATION v. CITY AND COUNTY OF SAN FRANCISCO et al.

No. 392.

United States District Court, N.D. California.

January 12, 1920

Theodore A. Bell, of San Francisco, Cal., for plaintiff.

Coogan & O'Connor, and George Lull, City and County Atty., both of San Francisco, Cal., for defendants.

VAN FLEET, District Judge.

A mature consideration of the presentation had on the application for an injunction pendente lite herein has satisfied me that the bill cannot be maintained, but that the restraining order heretofore granted should be vacated, and the bill dismissed. It seeks to restrain the enforcement of a municipal ordinance regulating the use of crude oil and its products for fuel purposes, etc., the pertinent provisions of which are these:

'Sec 2. No person or persons, firm, company or corporation shall, within the limits of the city and county of San Francisco, construct, erect or maintain any plant, or use any device or apparatus for burning crude petroleum or any of its products for fuel purposes, or use any device or apparatus whereby a gas is generated from crude petroleum or any of its products for fuel purposes, without permission of the board of supervisors of the city and county of San Francisco; said plant, device or apparatus shall be constructed, erected and placed in position to the satisfaction and with the approval of the fire marshal of the city and county of San Francisco, and in such manner as said fire marshal shall deem safe to life and property.

'The fire marshal is hereby authorized, empowered and directed to prescribe the necessary conditions which shall govern the exercise of special privileges granted by the board of supervisors for the storage and use of crude petroleum as a fuel:

'Provided however, that this section shall not apply to ordinary kerosene or coal oil lamps or properly constructed kerosene or coal oil stoves, using oil which will stand a fire test of 110 degrees Fahrenheit or better, before it will flash or emit an inflammable vapor.

'No crude petroleum or any of its products, or any oils or fluids, shall be used for fuel, cooking, heating or illuminating purposes within the city and county of San Francisco, unless the same will stand a fire test of 110 degrees Fahrenheit or better, before it will flash or emit an inflammable vapor.' The ordinance makes a violation of its terms a misdemeanor punishable by fine or imprisonment, or both.

The material averments of the bill, after setting out the ordinance, are that plaintiff is the owner of a device or burner known as the 'Kerodox Burner,' covered by patents, for burning hydrocarbon vapors generated from crude oil, in the manufacture, demonstration, and sale of which it is engaged throughout the United States; that the burner is intended to be used, and can only be used, when installed in or attached to an ordinary kitchen stove, and when so used the burner and stove in combination 'constitutes a properly constructed kerosene stove,' and that the oil as it is used therein will stand a fire test of 110 degrees Fahrenheit or better before it will flash; that plaintiff has granted to a licensee the right to manufacture, demonstrate and sell the device in a number of states, including the state of California, in consideration of which its grantee pays plaintiff a fixed royalty upon each burner manufactured and sold within said territory; that the licensee has established a place of business in the city and county of San Francisco for the manufacture, exhibition and sale of such burner, and is engaged in steps looking to its distribution and sale to purchasers throughout the granted territory; that the defendants,...