Galvan v. Superior Court of City and County of San Francisco

CourtUnited States State Supreme Court (California)
Citation70 Cal.2d 851,76 Cal.Rptr. 642,452 P.2d 930
Decision Date23 April 1969
Docket NumberS.F. 22642
Parties, 452 P.2d 930 John GALVAN, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; CITY AND COUNTY OF SAN FRANCISCO et al., Real Parties in Interest.

J. Edward Fleishell, Kirk Lambert Kirk, Charles L. Powell and Herbert C. Kohlwes, San Francisco, for petitioner.

Thomas M. O'Connor, City Atty., Edmund A. Bacigalupi and William R. Lowery, Deputy City Attys., for respondent and real parties in interest.

PETERS, Justice.

This is a petition for writ of mandate by John Galvan, a resident, taxpayer and firearms owner in San Francisco, in which he attacks the constitutionality of ordinance No. 175--68, the so-called San Francisco gun law. The ordinance, enacted in July 1968, provides for the registration of all firearms within San Francisco, with certain exceptions. 1

Galvan contends that the San Francisco gun law is void because the law conflicts directly with state laws regulating firearms, and, even if construed to avoid a direct conflict, invades the field of weapons control, which has assertedly been preempted by the state. He also claims that the law violates the right to bear arms, guaranteed by the Second Amendment, the privilege against self-incrimination clause of the Fifth Amendment, and the due process clause of the Fourteenth Amendment.

We reject all of these contentions, and hold that San Francisco Ordinance No. 175--68 is a valid exercise of local police power, neither in direct conflict with nor impliedly preempted by state laws concerning weapons, and violative of no provision of the United States or California Constitutions.

PREEMPTION--Conflict With State Law

Galvan argues that the San Francisco gun law is void because the law directly conflicts with Penal Code section 12026, which states that 'no permit or license' shall be required of any adult citizen (with certain limitations not at issue) to keep a concealable firearm at his residence or place of business. 2

The validity of the San Francisco law is governed by the California Constitution, article XI, section 11, which restricts local lawmaking to 'all such local, police, sanitary and other regulations as are not in conflict with general laws.' Any local law that directly conflicts with state legislation is void. (In re Mingo, 190 Cal. 769, 771, 214 P. 850; cf. Natural Milk etc., Ass'n v. City, etc., of San Francisco, 20 Cal.2d 101, 110, 124 P.2d 25.)

Section 12026, however, prohibits licenses or permits. The section does not prohibit registration requirements. The meaning of 'register' is '(t)o record formally and exactly; to enroll; to enter precisely in a list or the like.' (County of Los Angeles v. Craig, 38 Cal.App.2d 58, 59--60, 100 P.2d 818, 820, citing Webster's New International Dictionary (2d ed.); and see, Bergevin v. Curtz, 127 Cal. 86, 88, 59 P. 312 (voter registration does not 'add to the qualifications required of electors, nor abridge the right of voting, * * *'); Minges v. Board of Trustees, 27 Cal.App. 15, 17--18, 148 P. 816.) The meaning of 'license,' however, is permission or authority to do a particular thing or exercise a particular privilege. (City and County of San Francisco v. Pacific Tel. & Tel. Co., 166 Cal. 244, 249, 135 P. 971; Blatz Brewing Co. v. Collins, 69 Cal.App.2d 639, 643, 160 P.2d 37.)

Any requirement that an item be registered before it can be lawfully used involves, of course, 'permission to do a particular thing,' and to that extent 'registration' is the same as 'licensing.' But the basic, and commonly held, distinction between licensing and registration is that licensing regulates activity based on a determination of the personal qualifications of the licensee, while registration catalogs all persons with respect to an activity, or all things that fall with certain classifications. 3 Thus, voter registration lists merely enumerate all those persons who satisfy the requirements (are 'licensed') to vote. (See Bergevin v. Curtz, Supra, 127 Cal. 86, 88, 59 P. 312; O'Brien v. City of Saratoga Springs (1928) 131 Misc. 728, 228 N.Y.S. 82, 83--84, affd. 224 App.Div. 124, 229 N.Y.S. 613.) Similarly, recording statutes provide for the listing of property titles and other documents. (See e.g., Gov.Code, § 27320 et seq.)

Concededly, the distinction between licensing and registration has not always been reflected in all types of legislation. (See, e.g., Agnew v. City of Los Angeles, 51 Cal.2d 1, 6, 330 P.2d 385 (Los Angeles 'registration certificate' for electrical contractors, issuance and revocation of based on qualifications of applicant); Smith-Rice Heavy Lifts, Inc. v. County of Los Angeles, 256 Cal.App.2d 190, 198, 63 Cal.Rptr. 841 (where registered vessels exempt from taxation, 'registered' includes 'licensed or enrolled' vessels).)

But the language of the Dangerous Weapons' Control Act, and the legislative history of the statutes comprising the act, make clear that at least for purposes of weapons regulations, the Legislature recognized and acted on the commonly held distinction. (See County of Los Angeles v. Craig, Supra, 38 Cal.App.2d 58, 60--61, 100 P.2d 818 (meaning of 'registered' should be given ordinary and popular meaning).)

For example, the local police may issue a 'license' to carry a weapon, upon proof that the applicant is 'of good moral character' and has 'good cause' (Pen.Code, § 12050); the applicant must have a 'reason' for desiring a 'license' (Pen.Code, § 12051); 'permit' for machine guns and tear gas weapons may be issued upon proof of 'good cause' (Pen.Code, §§ 12230, 12423), and 'a permit' to possess a destructive device may be issued upon a showing that the possessor is a 'bona fide collector' (Pen.Code, § 12306). (Cf., licenses to sell concealed weapons (Pen.Code, §§ 12070--12072).)

'Register,' however, is used only in connection with the information required to be compiled and submitted by weapons dealers. (Pen.Code, §§ 12073--12077.) Thus, every person in the business of selling concealable firearms 'shall keep a register in which shall be entered the time of sale, the date of sale, the * * * salesman * * * the place where sold, the make, model, manufacturer's number, caliber, or other marks of identification * * *.' (Pen.Code, § 12073.)

Even more significant is the development of the Dangerous Weapons' Control Act. In 1917, a law was passed prohibiting the carrying of concealed firearms in cities and towns without a 'license' as 'hereinafter provided' (Stats. 1917, ch. 145, § 3, at p. 221), and authorized local police to issue such a 'license' on proof that the 'person applying * * * is of good moral character, * * *.' (Id., § 6, at p. 222.) The same law provided for dealers maintaining a 'register' of sales. (Id., § 7, at pp. 222--225.) In 1923, the provision prohibiting carrying concealed firearms without a license was changed to concealable weapons (Stats. 1923, ch. 339, § 2, at p. 696), and a paragraph added--substantially, Penal Code section 12026, that 'no permit or license' could be required to possess a firearm at one's residence or place of business. (Id. § 5, at p. 697.) The language of the provisions governing the issuance of 'licenses' to carry weapons and 'registers' for dealers, although expanded, remained otherwise intact. (Id., §§ 8, 9, pp. 698--701.)

The Legislature, then, recognized precisely the distinction between 'registration' and 'licensing.' The Legislature intended that the right to possess a weapon at certain places could not be circumscribed by imposing any requirements, such as 'good moral character' (except the exclusions in Pen.Code, § 12025) upon the person possessing the weapon. The Legislature associated 'permits' and 'licenses' with a determination of character and cause. The Legislature used 'register' differently from 'license' or 'permit,' yet included in Penal Code section 12026 only the language 'no permit or license.'

It is equally apparent that the San Francisco ordinance is a registration law.

The prerequisites to issuing the certificate of ownership are clear: '(a) The name and address of the owner; (b) A description of the firearm, including the following data, insofar as they may exist: the make, model, manufacturer's number, caliber or other marks of identification of such firearm.' (§ 610.2.) The chief of police 'shall' then issue a certificate of ownership, which certificate 'shall contain' the information provided in the registration application. (§ 610.3.)

The authority vested by the ordinance in the chief of police to revoke 'for cause' does not transform San Francisco's gun registration ordinance into a licensing law. The same section, requiring the chief of police to issue such a certificate and describing the information to be contained in the certificate, includes the provision authorizing the chief of police to suspend, revoke or cancel the certificate 'for cause.' We are satisfied that the term 'for cause' refers to the requirements for registration and means defects on the face of the registration, such as a false description or false name or address.

We conclude that the San Francisco registration requirement does not conflict with the permit and licensing provision of section 12026 of the Penal Code.

Preemption by Implication

Galvan contends that even if the San Francisco gun law does not directly conflict with any state statute, the gun law is void because the state has preempted the entire broad field of weapons control. A local ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by the general law. (Cal.Const., art. XI, § 11; In re Hubbard, 62 Cal.2d 119, 125, 41 Cal.Rptr. 393, 396 P.2d 809; In re Koehne, 59 Cal.2d 646, 649, 30 Cal.Rptr. 809, 381 P.2d 633; In re Loretizo, 59 Cal.2d 445, 446, 30 Cal.Rptr. 16, 380 P.2d 656; In re Lane, 58 Cal.2d 99, 102, 22 Cal.Rptr. 857, 372 P.2d 897, and cases cited...

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