Foote v. Fire Department — 5 Hill & Den. 99

Majority

p. 99

Foote vs. The Fire Department of the City of New-York.

Headnote

The twenty-fourth section of the act in relation to the prevention of fires in the city of New-York (Sess, L. of ’30, p. 353) prohibiting any person or persons from having or keeping gunpowder in any house, store, &e. within certain limits, extends to the mere act of receiving powder into a store, though for the purpose of being immediately packed and shipped to another state.

The prohibition is a police regulation for the prevention of nuisances, and therefore is not in conflict with Art. 1, § 8, sub. 3 of the constitution of the United States.

The second section of the act of 1841, (Sess. L. ’41, p. 137,) is not to be construed as operating a general repeal of the twenty-fourth section of the act of 1830; but merely as creating an exception of certain cases arising since the passage of that act.

Error to the New-York C. P., where the defendants in error sued the plaintiff in error in debt to recover the penalty given by the 26th section of the “ act to amend the acts heretofore passed for the prevention of fires in the city of New-York,” passed April 20th, 1830. (Ness. Laws of 1830, pp. 349, 352.) The 24th section of the act provides that it shall not be lawful for any person or persons to have or keep any quantity of gunpowder exceeding twenty-eight pounds in weight, in any one house, store, &c. in the city of New-York, to the southward of a line running through the centre of Fourteenth street, &c. The 26th section imposes a penalty of .$125 for every .hundred pounds of gunpowder kept in violation ,of the above provision, and in that proportion for a greater or less quantity. The second section of the act of 1841, (Ness. Laws of 1841, p. 137,) authorizes any person dealing in gunpowder in the city of New-York to receive and keep it in his store for a time not exceeding two hours in any one day «fee., for the purpose of packing &c.; but not in any quantity exceeding five quarter-casks at any one time. On the trial in the court below it appeared that., on the 12th of September, .1840, the-fire-wardens of the city of NewYdrk found at the’Store of.-the, defendant, a liquor merchant,

p. 100

within the prohibited district, twenty-five kegs of powder each containing twelve and a half pounds. The powder had been in the store but fifteen minutes, and was in process of packing for shipment to Mobile when the wardens seized it, a cart being then at the door for the purpose of taking it to the vessel. The court below charged the jury that the plaintiffs were entitled to recover, and the defendant’s counsel excepted. Verdict and judgment for the plaintiffs. The defendant sued out a writ of error.

Brady & Maurice, for the plaintiff in error,

insisted, 1. That the 24th section of the act of 1830 ought not to be so construed as to make a party liable for having or keeping powder in his store, unless placed there for sale, on deposit or storage ; and that the act did not apply to a case like the present, where the powder was in the store for the mere purpose of repacking and shipment in the ordinary course of mercantile business. 2. That if the act were susceptible of the construction contended for by the defendants in error, it would be unconstitutional, as interfering with the exclusive power of congress over commerce between the several states. 3. That the 24th section of the act of 1830 was repealed by the 2d section of the act of 1841.

C. T. Cromwell, for the defendants in error.

It is supposed that the words, “it shall not be lawful for any person or persons to have or keep any quantity of gunpowder,” &c., (Laws of 1830, p. 352, § 24,) do not extend to the act of receiving it into the store of the defendant below for the purpose of being packed and sent to Mobile for sale, the labor of packing being prosecuted with diligence, and the whole transaction in good faith. The provision that no person shall have powder in his store, dec., is, however, too plain to be got over. It comprehends every act of possession, whether for the immediate purpose of removal or not, if such possession be in a store or other building or place, except indeed when the powder is on its passage in the street secured in the

p. 101

maimer provided for in the 29th section of the same act. In the common phrase, the defendant had the powder in his store. The statute declared he should not have it there.

The statute is a mere police regulation—an act to prevent a nuisance to the city—and is not, therefore, objectionable as coming ha conflict with that clause in the United States constitution which grants to congress the power of regulating commerce between the states.

There is no ground for saying that the 2nd section of the act of 1841, (Sess. Laws of 1841, p. 137) operates as a general repeal of the section on which this action was brought. It merely creates an exception of cases like that in question arising after the passage of the act of 1830.

Judgment affirmed,