On Rehearing.
[Department One. April 25, 1921.]
Per Curiam.— A petition for rehearing and the answer thereto are before us. We desire to make some slight modifications in our previous opinion. The purpose of this action was to enjoin the respondent, who is an officer of the city of Everett, from putting into force against appellant any portion of a certain ordinance of the city of Everett with reference to the use of the streets. This ordinance was copied into and made a part of the amended complaint.
It would appear that, at the commencement of the suit, the court made an order temporarily restraining the respondent, as prayed for, and at the same time directed the respondent to appear and show cause why the temporary restraining order should not be made permanent. The first appearance of the respondent, in answer to the order to show cause, was by some affidavits which set up that the appellant had been, and was, so using the streets of Everett as to permanently injure and destroy them. The respondent next ap*415peared by a general demurrer to the amended complaint. The next thing that appears in the record is a judgment which, upon its face, has all the indications of a final judgment after a hearing upon the merits. These are all the proceedings had in the lower court. In our previous opinion, we treated this judgment as a final one upon the merits, and in so doing upheld the ordinance and found that the use being made by the appellants of the streets was such as to permanently injure them, in violation of the ordinance.
The appellant now contends that we have misconstrued the judgment and that its intention was only to dissolve the temporary restraining order theretofore issued and sustain the general demurrer to the amended complaint and, the plaintiff having elected not to plead further, dismiss the action. In other words, he now contends that the case was not heard upon the merits and that the trial court did not intend to adjudge that he had so used the streets as to permanently injure them. Although the record is in such condition as to easily lead to the conclusion that the case had been disposed of on its merits, a re-examination disposes us to accept appellant’s view in this regard. So looking at the case, the substance of the previous opinion still stands. For the sake of clarity, let us suppose that the only things now before us are the amended complaint, with the ordinance attached thereto, a general demurrer, an order sustaining the demurrer, the refusal of the plaintiff to plead further and a judgment dismissing the action. The sole purpose of the action was to test the validity of the ordinance. If it should be held invalid, then a permanent injunction should issue prohibiting its enforcement; but if it, or any portion of it, be held valid and subject to enforcement, then the demurrer to the complaint *416should have been sustained and the action dismissed. The effect of our previous opinion was to support at least the major portion of the ordinance and leave it subject to be enforced. Such being our holding, the necessary result must be that the trial court was right in sustaining the demurrer to the complaint, because if the ordinance was good, then appellant is not entitled to any relief in this action. Viewing the ease in this light, it is not one which involves any question whether the appellant has violated the ordinance.
Our conclusion is that the judgment sustaining the demurrer and dismissing the action should be, and is, affirmed. "Whatever we said in our previous opinion tending to indicate that the appellant had violated the terms of the ordinance, by using the streets in such a way as to permanently injure or damage them, is hereby eliminated. All other portions of the opinion will stand and the judgment appealed from is affirmed.