from an inspection of the laws themselves, | correlative rights of the council in the mator it cannot be shown at all. ter were to pass reasonable regulations [4] So, for the same reason, it is permis- touching the mode and manner of the supply, sible in a proper case to show what evidence and reasonable regulations touching the price. the council had before it, but the conclusions The argument of respondent is that the which it reached from that evidence are to sole question of the compulsory supplying be found alone from the expressions in the of incandescent lights by the companies free ordinance and are not a subject for extrin- of charge is the question of the reasonablesic evidence. Thus, it is permissible to show ness of the provision as a regulatory measthat the statements of the electric companies ure. He demonstrates to his satisfaction that established that they had been furnishing it is reasonable, and concludes that this is incandescent lamps to consumers without an end of the discussion. His argument charge, and the cost to which the companies were put by so doing. It is a fair inference that this evidence was weighed and considered by the city council in fixing the rates, but not even the members of the city council themselves, and, of course, not the chief of police or Mr. Comstock, attempting to speak for them, would be permitted to say what they meant or intended concerning this matter in the ordinance which they framed and adopted. The ordinance itself must speak upon this matter, or no one can speak. Delaplane v. Crenshaw, 15 Grat. (Va.) 457. here follows: "Does the requirement of furnishing incandescent lamps place it within the definition of being reasonable and of being natural to and consistent with the kind of business which is required to furnish them? Its reasonableness is obvious: First, it is an unmistakable convenience to consumers; second, it is a necessity and should be supplied to the consumer at the least possible cost and least possible trouble to himself; third, it is a necessary incident to the supplying of electric light; fourth, it is no more foreign to or inconsistent with the business than What, then, is the legal presentation of supplying the electrical manufacturing mathis matter? It is that the city council had chinery, the wires to conduct electricity, the before it evidence that by private convention poles to sustain the wires, or the meters to and contract between the various electric measure the quantity consumed; fifth, it is companies and their consumers these electric already the practice of the companies supcompanies had been in the practice of fur plying electric light, in accordance with one nishing to their consumers free of charge, un- method or another, to supply these incandesder certain restrictions, incandescent electric cent lamps. That furnishing these incandeslights. With this knowledge they passed a cent lamps is natural to and consistent with rate-fixing ordinance, complete in itself, pre- the business of electric lighting companies scribing the compensation which such com- has been answered by the foregoing remarks panies might exact of consumers who used on reasonableness." But every word of this, their electricity. This ordinance in no way except the fifth specification, which is withattempted to impose any duty or burden up-out legal value upon the question of reaon the companies in the matter of furnishing sonableness, would apply as well to an ordiincandescent lamps. Subsequently, by a sep-nance compelling electric companies to wire arate ordinance, containing no reference the houses, since, first, the wiring is unmiswhatsoever to the rate-fixing ordinance, the city council declared that every company furnishing electricity must furnish free incandescent lamps, or be subject to fine and imprisonment in every case of failure so to do. In point of law these ordinances are independent and unrelated. The second ordinance does not in matter, substance, form, time, or term deal directly or indirectly with the rates which had theretofore been fixed. But, if it did, if it had made express reference to the rate-fixing ordinance and declared that it was amendatory thereof and supplemental thereto, which is the utmost for it which respondent can or does claim, the legal situation would not be different. takably a convenience to consumers; second, it is a necessity which should be supplied to the consumer at the least possible cost and trouble to himself; third, it is a necessary incident to the supplying of electric light; and, fourth, it is no more foreign to or inconsistent with the business than supplying electrical manufacturing machinery. Indeed, the same could be said of an ordinance requiring gas companies to put in the gas plumbing and fixtures free of charge, or to an ordinance requiring water companies to do the same with water plumbing and fixtures. The primary question is not at all one of reasonableness, but one of legislative power. Only after the existence of the power is shown does the question of the reasonableness of its exercise arise. Thus there was a time under earlier republics when sumptuary laws to restrain reckless expenditures were deemed important and even essential to the existence of the government. In this extravagant age the reasonableness of a law limiting women's expenditure in the matter of attire, or men's expenditure in the indulgence of their appetites, could be sup ported with much plausibility. But the ar- No law of the state attempts in the remotest gument would never reach the question of extent to impose such a duty. The public reasonableness, since it would cease and the duty of such a corporation is fully performed question would be determined solely by con- when it has brought its commodity safely sideration of the want of legislative power. and conveniently to the door of the consumer. The power and the limitations upon the Within that door the company is not by power of the council in dealing with these law obliged, and may not by law be compublic service corporations has been indicat-pelled, to go for any purpose foreign to the ed. That power is a power of supervisory public service it is called upon to render, control over the business, the administra- and that the purpose here contemplated is tion, and the functions of the corporation in foreign is abundantly established. Snell v. the latter's dealings with the public. Be- Clinton Electric L., H. & Power Co., 196 Ill. yond these matters the city council cannot 626, 63 N. E. 1082, 58 L. R. A. 284, 89 Am. go. The whole subject is epitomized in the St. Rep. 341; Burke v. Mead, 159 Ind. 252, following language of the Supreme Court of 64 N. E. 880. So that, aside from the fact the United States in Chesapeake & Potomac that the execution of this criminal ordinance Tel. Co. v. Manning, 186 U. S. 238, 247, 22 would work an unconstitutional confiscation Sup. Ct. 881, 885, 46 L. Ed. 1144: "A rail- of property, a fact itself conclusive against road company may, if authorized by its char- the validity of the ordinance, it attempts by ter, carry on not simply its strictly railroad law to impose upon a public service corporabusiness, but also an establishment for the tion a burden and a duty in no wise appermanufacture of cars and locomotives. The taining to or growing out of its public funcfact that it is engaged in these two different tions. It has been said that, the fact that works would not in itself subject the manu- these companies were furnishing incandesfacture of cars and locomotives to the super- cent lights to the consumers free of charge vision of the Legislature, although such body being in evidence before the municipal counwould have the right to regulate the charges cil, it is a legitimate inference that this fact for railroad transportation." The city coun- was considered by the council in fixing the cil can no more compel a public service cor- rates. This is true, but the determination poration to do or abstain from doing anything which they reached, after such consideration, not pertaining to the public service itself than must be discovered from the ordinance itit can compel a private individual; for, outside self. As has been pointed out the rate-fixing of its public functions, the corporation is a ordinance contains no expression upon the private corporation. Nor does the fact that as subject. What is to be deduced from its sia matter of private arrangement the corpora- lence, therefore, is solely by way of argution has been doing à particular thing, not ment, and if, as respondent argues, the city pertaining to its public functions, justify the council did in fact make an allowance to legislative body in an endeavor to make the these companies because of the gifts which continued doing of that thing compulsory they were making to their consumers, the anunder the law. This argument was com- swer is that this was a very improper thing pletely answered by the Supreme Court of for the council to do. The council has no the United States in Lakeshore & M. S. Ry. right to recognize and allow for gifts, donaCo. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, tions, or charitable bestowals made by public 43 L. Ed. 858, in the following language: service corporations, however commendable "What the company may choose voluntarily from the ethical point of view these things to do furnishes no criterion for the measuremay be. A gas company may furnish the ment of the power of a legislature. Persons gas and the gas fixtures to a hospital free may voluntarily contract to do what no leg- of charge. It might donate $50,000 a year islature would have the right to compel them to the maintenance of some worthy charity, to do. Nor does it furnish a standard by but the council could not allow a return to which to measure the reasonableness of the a company for such donations. Still less matter exacted by the Legislature. The ac- could it exact that their continuance for suction of the company upon its own volition, ceeding years should be compulsory. purely as a matter of internal administration, and in regard to the details of its business which it has the right to change at any moment, furnishes no argument for the existence of a power in a legislature to pass a statute in relation to the same business imposing additional burdens upon the company." See, also, Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct. 130, 41 L. Ed. 489; Missouri Pacific Ry. Co. v. Nebraska, 217 U. S. 196, 30 Sup. Ct. 461, 54 L. Ed. 727. [7, 8] No one can seriously assert that the furnishing of incandescent lamps is a part of the public duty of a quasi public corporation supplying electricity for light or power. As has been said, to treat the penal ordinance as amendatory of the rate-fixing ordinance does not relieve the difficulty. It would then amount to a declaration by the city council that the companies could collect the fixed sum for supplying electricity, provided that they furnish the consumers with free incandescent lamps. This would be, again, but the imposition of an illegal condition upon the right to transact a public business, and it would be a failure to fix rates at all, as to all companies which were unwilling to conform to the condition. No case cited by respondent in any wise supports his contention that the Legislature may regulate or control a public service cor TIES. [Ed. Note.-For other cases, see Liens, Cent. 3. LIENS (§ 11*)-EQUITABLE LIENS. [Ed. Note.-For other cases, see Liens, Cent. Dig. §§ 2, 3; Dec. Dig. § 11.*] 4. ABATEMENT AND REVIVAL (§ 40*)-NECESSITY OF PLEA IN ABATEMENT. poration in its private affairs as distinguish-chinery should be charged with repayment of ed from its public duties, or that it may the debt created by the advance, an equitable compel such a corporation to do or abstain lien thereon arose in plaintiff's favor, if not at from doing anything not pertinent to its pub- so consigned to plaintiff. the time of the purchase, at least when it was lic functions as a condition precedent to its right to perform those functions. One and all the cases are addressed to the familiar principle herein repeatedly announced, that the Legislature may pass reasonable rules and regulations touching the performance of these public functions. They do not, therefore, call for extended review, but, as typical of them, may be instanced State v. Gas Co., 34 Ohio St. 572, 32 Am. Rep. 390, where the gas company, under a special charter, was invested "with franchises to be exercised to subserve the public interest," and it was held that under express law the regular rates which the gas company could charge for the use of meters was subject to regulation. Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247, a case in which respondent finds a strong resemblance to the case at bar, is simply this: A declaration by the Supreme Court of the United States that the business of grain elevating is a business charged with a public trust, and therefore subject to rate regulation; that the public business consisted, first, in shoveling grain to the leg of the elevator to keep the elevator buckets full; and, second, the hoisting, transferring, and weighing of the grain elevated by the buckets; that it was not unreasonable in fixing a rate not exceeding five-eighths of a cent a bushel for the performance of the latter duty, to prescribe also that the former duty should be done at actual cost, since the reasonable purpose of the provision was to prevent collusion be tween the elevator owners and the shovelers' union, whereby the rate fixed could be evaded and the amount charged greatly increased. It should be apparent, we think, that these principles and this decision have nothing in common with an ordinance requiring a public service corporation to engage in the private enterprise of making gratuitous distribution of incandescent lamps to their consumers upon demand. The ordinance in question, therefore, being plainly in excess of the legislative powers of the city council of the city of Los Angeles, and therefore void, it is ordered that the prisoner be discharged. We concur: LORIGAN. J.; SLOSS, J.; SHAW, J.; ANGELLOTTI, J.; MELVIN, J. (59 Or. 528) DUFUR OIL CO. v. ENOS et al. (Supreme Court of Oregon. July 25, 1911.) 1. LIENS (§ 7*)-EQUITABLE LIENS. It being the intention of the parties to the contract of E to drill a well for plaintiff, whereby plaintiff agreed to advance $2,500 to enable E. to buy drilling machinery, which should be consigned to plaintiff, that such ma right to foreclose its equitable lien on property, [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 205-211; Dec. Dig. $ 40.*] 5. ABATEMENT AND REVIVAL (§ 85*)-MATTERS to anticipate a special defense in abatement, is [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 508-510; Dec. Dig. § 85.*] 6. EXECUTION (§ 129*)-LEVY ON PERSONALTY IN POSSESSION OF THIRD PERSON. subd. 3, whereby execution can be levied on Under L. O. L. § 233, subd. 4; Id. § 300, personalty in the possession of another than the judgment debtor only by leaving with such third person a certified copy of the writ and lien is created by the sheriff merely assuming to a notice specifying the property levied on, no take possession of the property. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 290-304; Dec. Dig. § 129.*] Appeal from Circuit Court, Wasco County; W. L. Bradshaw, Judge. Suit by the Dufur Oil Company against T. W. Enos, doing business as the Pacific Well Drilling Company, Levi Chrisman, Sheriff of Wasco County, T. B. Slusher, and John Marsh. From the decree, defendant Marsh appeals. Affirmed. This is a suit to enjoin the sale upon execution of certain personal property and to foreclose an equitable lien thereon. complaint states in substance (1) that plainThe tiff is a corporation; (2) that on June 1, 1907, and continually thereafter, the defendant T. W. Enos was and is engaged in busi For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ness as the Pacific Well Drilling Company; | scribed in the complaint, and he claims to (3) that the defendant Levi Chrisman is have taken actual possession thereof and the sheriff of Wasco county: (4) that plain- threatens to sell the same, and will put his tiff is the lessee of certain real property; menace into execution, unless restrained; (5) that on June 1, 1907, plaintiff entered (10) that the Oregon Drilling Company had into a contract with Enos, as the Pacific not at any time any interest in or right to Well Drilling Company, whereby he stipu- such personal property, or any part thereof; lated to drill for plaintiff on the leased (11) and that plaintiff has no plain, speedy, premises a well of specified diameter to a or adequate remedy at law. depth of 2,000 feet, if practicable, at $5 a linear foot, on account of which plaintiff was to advance on drafts, with bills of lading for drilling machinery attached, the sum of $2,500 as a part of the purchase price of such machinery, which was to be held by plaintiff as security for the loan. The contract contained a clause as follows: "It is further understood and agreed by and between the parties hereto that the oil company shall pay and advance on the price to be paid for such drilling a sufficient amount of money to pay for the labor, fuel and necessary expenses incurred by the drilling company in boring said well, but I not to exceed the sum of two and one-half ($2.50) dollars for each foot as such well may be bored and all sums advanced by the oil company to the drilling (company) on account of labor, fuel and necessary expenses and said sum of two thousand five hundred ($2,500.00) dollars, advanced on purchase price of machinery shall be deducted from any sum or sums becoming due the drilling company for boring or sinking such well, until such sums shall be fully repaid to the oil company." The agreement also provided that the drilling company should buy all necessary casings and drive pipes, and the oil company, upon demand, would repay the purchase price thereof, with the additional freight charges thereon. The prayer of the bill is (1) that the sheriff be enjoined from attempting to sell the property involved herein; (2) that plaintiff be decreed to have a lien thereon; (3) that such lien may be foreclosed and the property sold to satisfy the charges imposed thereon; (4) that, after discharging the incumbrance, any surplus remaining may be paid to the party decreed herein to be entitled thereto; and (5) for such other and further relief as may be equitable in the premises. Omitting the formal parts, the pleading of one of the parties, is as follows: "John Marsh, one of the above-named defendants, in answer to complaint of plaintiff herein, denies each and every allegation in said complaint, except paragraph 9, which is admitted." The defendant T. B. Slusher intervened and filed an answer denying paragraphs 2, 5, 6, 7, 8, 9, and 11 of the complaint, and alleging, in effect, that, by consideration of the circuit court of Oregon for Multnomah county, in an action wherein he was plaintiff and T. W. Enos was defendant, he secured a judgment for $376.90 and the costs and disbursements; that an execution was issued on such judgments, and the personal property described in the complaint was seized as belonging to Enos, but such levy of the writ was subsequent to the seizure of the property by Marsh under the execution issued upon his judgment. No reply or interpleading was filed by either party, but prior to the trial it was substantially stipulated by the attorneys for plaintiff and for Marsh that the sum of $2,500 was advanced, as alleged on account of which loan about $300 had been paid; that the judgment secured by Marsh was for work performed by him in drilling the well, which he sunk 187 feet; that he was informed that some of the machinery had been paid for by such advances; that plaintiff knew he was doing work under a contract with Enos, or whatever company the latter represented; and that Marsh never rendered any services under a contract with plaintiff. The complaint further states in effect (6) that pursuant to the contract, Enos, as the Pacific Well Drilling Company, purchased and shipped to plaintiff certain personal property, particularly describing the articles thereof, whereupon plaintiff paid out as stipulated the sum of $2,500; (7) that no part thereof has been repaid, except about $300, though the time for the payment thereof has expired; (8) that all such personal property was placed on the leased premises, and was used by the Pacific Well Drilling Company in sinking the well thereon until March 17, 1908, when plaintiff, according to the contract, took possession of the machinery, and thereafter held it; (9) that by the consideration of the circuit court of Oregon The defendants Chrisman and Enos not for Wasco county the defendant John Marsh, having appeared or answered, the cause was as plaintiff, secured a judgment against the tried and findings of fact were made correOregon Drilling Company, a corporation, the sponding to all the averments of the comDufur Oil Company, a corporation, the plain-plaint, except the tenth, upon which no findtiff herein, and W. H. H. Dufur, as defend- ing was made; that Slusher commenced an ants, for the sum of $725, and an execution action against Enos and sued out a writ of having been issued thereon was delivered to attachment, pursuant to which the personal the defendant Chrisman, who "undertook" to property involved herein was attempted to levy the writ on the personal property de- be seized as the machinery of Enos; that a judgment was rendered in that action and an execution issued thereon was directed to the sheriff, who, obeying the writ, a few days prior to the commencement of this suit, attempted to levy the same upon and to take possession of all the personal property described in the complaint; and that an execution was issued on Marsh's judgment, and the defendant Chrisman undertook to levy the writ upon and to take possession of all such property as that of the Oregon Drilling Company. maybe less-$12; bits, $70; pipe casing tongs, $135." Thereupon he was cross-examined as follows: "These things which you shipped after the $2,500 had been advanced were simply in completion of your well-drilling outfit? A. Yes. Q. You understood, and everybody else understood, that they were held as security for the $2,500 advanced? A. Yes; that was the understanding, and considered a part of it." [2, 3] "Subsequent purchasers and creditors," says an author, "are bound by equiAs conclusions of law, the court deter- table liens, if they acquire their rights with mined that plaintiff had a prior lien upon either actual or constructive notice of them." all the property described in the complaint, Jones, Liens (2d Ed.) § 96. The evidence which lien should be foreclosed and the ma- shows that the contract to which plaintiff chinery, etc., sold to satisfy the demand; and Enos became parties was duly recorded upon the payment of which, Slusher's judg-in the Miscellaneous Records of Wasco counment should be liquidated, and if any money then remained it should be applied upon Marsh's judgment. A decree was rendered in accordance with such findings, and Marsh alone appeals. B. B. Crawford (Taggart & Crawford, on the brief), for appellant. Bert E. Haney (Joseph & Haney, on the brief), for respondent. ty, and that the defendants knew that the agreement had been entered into. We think the tools shipped by Enos were intended by the parties as a part of the security for the payment of the sum advanced, and such be ing the case the equitable lien attached thereto. The deposition of Enos further shows that the Oregon Drilling Company was incorporated October 16, 1907, and on December MOORE, J. (after stating the facts as 10th following it entered into an agreement above). [1] The testimony clearly shows that with one of the defendants, in referring to on June 1, 1907, when the written agreement which he was asked: "Then, as I understand was signed by the parties, Enos was then en- you, at the time that this contract before gaged in business as the Pacific Well Drilling mentioned was entered into by and between Company. It is evident from an examination the Oregon Drilling Company and John of the contract that it was intended to Marsh, the Oregon Drilling Company owned charge particular property with the payment all the well-drilling machinery, supplies, tools, of a debt to be created by advances made apparatus, and appliances that were used in to enable Enos to secure the necessary ma- the drilling of the well or wells contracted chinery with which he could perform the for by the Dufur Oil Company and you, as work undertaken. An equitable lien was the Pacific Well Drilling Company?" Withthus expressly contemplated by the parties, out objection or exception, Enos replied: whereby the boiler, engine, tools, appliances, "Yes; and also the contract with the Duetc., should constitute security for the repay-fur Oil Company was assigned by the Pament of $2,500 advanced on account thereof. cific Well Drilling Company to the Oregon Marquam v. Sengfelder, 24 Or. 2, 11, 32 Pac. Drilling Company." 676. Whether or not, by invoking the maxim [4] No issue was involved to which this that equity will regard as done what was answer was responsive, unless it related to intended, the lien arose when the machinery the denial in the answer of Marsh of the was purchased is unnecessary to determine; | allegation of the complaint to the effect that for the charge imposed upon the specific the Oregon Drilling Company, against which property attached when the boiler, engine, Marsh had secured a judgment, "had not at etc., were consigned to plaintiff in accord- any time and has not now any right, title, ance with the terms of the agreement. Jones, or interest whatsoever in or to said personal Liens (2d Ed.) § 64. property, or any part thereof." No articles Testimony was offered by witness who ap- of incorporation of the Oregon Drilling Com- . peared for defendants tending to show that pany, nor any bill of sale executed to it some of the machinery, tools, etc., described by Enos, as the Pacific Well Drilling Comin the complaint was never consigned to pany, nor any copy of either, was offered in plaintiff, and such being the case no lien evidence. If Marsh had desired to chalcould be imposed thereon. In a deposition lenge plaintiff's right to foreclose its equiEnos stated, upon oath, that after consigning table lien upon the machinery, on the ground to the Dufur Oil Company machinery, with that Enos was not then the owner of the sight drafts attached, and on account of property, a plea in abatement should have which $2,500 was paid by plaintiff, he ship- been interposed. Derkeny v. Belfils, 4 Or. ped in his own name other appliances, say- 259; Bump v. Cooper, 20 Or. 527, 26 Pac. ing: "There were blocks and tackle worth 848; Sutherlin v. Bloomer, 50 Or. 398, 93 probably in the neighborhood of $50 or $60; Pac. 135. wrenches, $20; there was a lubricator, $16 [5] The tenth averment of the complaint |