June, 1898.] Opinion of the Court- REAVIS, J. contract on the 18th of June, 1896, with the Saginaw Logging Company, by the terms of which Carstens Brothers were to furnish money and supplies necessary to get out logs and carry on the business of the logging company and to sell the logs and pay themselves for all money expended under the contract and return the surplus to the Saginaw Logging Company, and the agreement, which is in writing, is set out; that the Saginaw Logging Company was indebted to Carstens Brothers in large sums; that the company prior to May 24, 1897, secured and got out a boom of logs under the contract with Carstens Brothers of the value of $1,200; that the logs were taken possession of by Carstens Brothers who exercised acts of ownership over them; that at this time the judgment creditors, Gustin & Tibbetts, had an execution issued upon their judgment against Thomas Jose, which was levied by defendant Moyer, as sheriff, upon the boom of logs; that the sheriff took possession of all the logs; that Carstens Brothers demanded possession of the logs of the sheriff, which was refused; that they then filed their affidavit of claim of ownership under § 491, 2 Hill's Code (Bal. Code, § 5262) and executed and delivered a bond to Moyer, the sheriff; that the cause was regularly docketed and heard in the court; that judgment was rendered against Carstens Brothers and their sureties on the bond in the sum of $1,200; and that such judgment is unsatisfied. It is also stated that all the defendants except Moyer are insolvent and that the plaintiffs Carstens Brothers sold the logs for the sum of $1,200, and now have the money in place of the logs. And it is also stated that the members of defendant Saginaw Logging Company claim they are entitled to the money; that if the logs are not the property of Carstens Brothers they are the property of the Saginaw Logging Company, and that said company is Opinion of the Court- REAVIS, J. [19 Wash. either entitled to the logs or the money for the same; and that Carstens Brothers claim that they are either entitled to the money or to hold the claim for the same against the Saginaw Logging Company. It is also stated that Thomas Jose is indebted to the Saginaw Logging Company, and after payment of the partnership debts there will be no sum due him from the firm, and that at the time the levy was made upon the logs by the sheriff his partnership debts were greatly in excess of the property of the partnership, and there was nothing due for the individual creditors of Thomas Jose. Plaintiffs state they are willing to pay the moneys over to the parties entitled thereto and ask that all the defendants be brought into court and required to have their rights and claims adjusted, and the court determine to whom the money shall be paid. The defendants, sheriff, Gustin & Tibbetts, Skavdale and Jose, filed separate demurrers to the complaint on the ground that it did not state a cause of action, and the demurrers were sustained by the superior court. The plaintiffs Carstens Brothers are in no other or different position than they were when they claimed the boom of logs as against the levy of the sheriff. They made their claim under their contract with the Saginaw Logging Company as the owners of the logs. A trial was had, and it was determined that they were not the owners of the logs, but that such logs were subject to the execution of Gustin & Tibbetts against Thomas Jose. The money which Carstens Brothers have in their hands merely stands in place of the logs, and, as between them and Gustin & Tibbetts, the judgment of the court was they should pay the $1.200. The unadjusted matters as between the Saginaw Logging Company and Carstens Brothers cannot concern Gustin & Tibbetts, who were adjudged to be entitled to the proceeds from the boom of logs, viz., the $1,200. There does not Opinion of the Court-DUNBAR, J. June, 1898.] seem to be any element of intervention in the complaint and the judgment of the superior court is affirmed. DUNBAR and GORDON, JJ., concur. (No. 2856. Decided June 7, 1898.) TOWNSEND GAS AND ELECTRIC COMPANY, Respondent, MUNICIPAL CORPORATIONS - CHARTER POWERS AND RESTRICTIONS - Where a city is given power by its charter, without restriction, to provide for lighting the streets and furnishing the city with lights, a further provision of the charter fixing a method of levying an annual tax to pay for the same must be construed as an enlargement of the right of the city to provide funds therefor and not as a restriction upon the power conferred, which would confine the city's lighting contracts to annual periods. Appeal from Superior Court, Jefferson County.—Hon. J. G. MCCLINTON, Judge. Affirmed. S. A. Plumley, for appellant. Harry Ballinger, and Robert W. Jennings, for respond ent. The opinion of the court was delivered by DUNBAR, J.—On the 15th day of February, 1893, the respondent entered into a contract with the city of Port Townsend, a municipal corporation, created and existing under an act of the legislative assembly of the territory of Washington, for the lighting of the streets of said city with electric lights for the period of five years. The payments were made according to contract for two years, since which time no payments have been made, and this Opinion of the Court-DUNBAR, J. [19 Wash. action was brought to enforce the same. A demurrer was interposed to the complaint, which was overruled, and the appellant, standing on its demurrer, brings the case to this court. It is contended by the appellant that the action of the city authorities was ultra vires by reason of § 6 of the charter of Port Townsend. Said section is as follows: "The city of Port Townsend has power to provide for the lighting of the streets and furnishing the city with gas or lights, and for the erection and construction of such works as may be necessary or convenient therefor; and has power to levy and collect for these objects a special tax not exceeding one-fifth of one per centum per annum upon the taxable property within the limits of the benefits of such lights, which limits shall be fixed by the city council each year before levying any tax authorized by this section, and all such taxes shall only be assessed upon and collected from property within said limits.” It is contended by the appellant that the charter provisions set forth above constituted the only authority vested in the city council to provide for lighting the streets, and that that portion of § 6 of the charter providing that the city council should each year fix the limits of the benefits of lights, creating a light district within which a special tax shall be levied for such purpose, and the further provision in § 107, providing for a vote of the people, constitute a limitation of the power granted by the first portion of $6. First, The contention of the respondent is two-fold: that the power to provide for the lighting of its streets is expressly conferred upon the city, and that the latter part of the section is an enlargement of the right of the city to provide funds therefor and not a restriction upon the power conferred; and, second, that if it were held that the clause cited is restrictive, it is not a restriction upon the June, 1898.] Opinion of the Court-DUNBAR, J. power to contract for street lighting, but only on the manner of providing for the payment of the sums payable under the contract. It is further contended that the city having made a contract and having received the benefit of that contract, it will not now be heard to say that it had no power to enter into such contract in the particular way in which it did. It is not necessary to pass upon this last proposition, as an investigation of all the charter provisions of the city of Port Townsend, found on page 115 and following pages of the laws of 1881, convinces us that the latter part of § 6 is not a restriction upon the right of the city to contract for lighting the streets, but is simply an addition to the general powers given, or rather a way pointed out for paying for the lighting of the streets which the city may avail itself of, if it sees fit. The provisions in this section are very much of the character of the provisions in the other sections. For instance, in 87 the power is given to the city, among other things, to provide for constructing sewers and cleaning and repairing the same, and then follows the power to assess taxes in a certain prescribed way for the payment of the construction of sewers, etc. The power to construct sewers and to keep them in repair is certainly an inherent power in the city and therefore a power which the city would have the right to exercise in the absence of a charter declaration; and it certainly was not the intention of the charter to abridge this right or to make it depend absolutely upon the provisions following for the collection of taxes. This case falls squarely within the rule announced in Portland Lumbering & Manufacturing Co. v. East Portland, 18 Ore. 21, which was favorably commented upon by this court in Soule v. Seattle, 6 Wash. 315. The provisions of the charter of East Portland were almost synon |