
    [No. 2801.
    Decided March 7, 1898.]
    C. R. Wilson et al., Appellants, v. City of Aberdeen, Respondent.
    
    MUNICIPAL CORPORATIONS — WARRANTS DRAWN ON SPECIAL FUND — LIABILITY OF CITY FOR PAYMENT.
    A city cannot be rendered liable generally upon warrants drawn against a special fund for the payment of a street improvement, even if the remedy of a street assessment proceeding is no longer available. (Dunbar, J., dissents.)
    Appeal from Superior Court, Chehalis County. — Hon. Charles W. Hodgdon, Judge.
    Affirmed.
    
      Griffiths & Hutcheson, for appellants:
    Upon the point that the city is liable to satisfy special fund warrants out of its general fund when the assessment remedy has been lost, counsel cite Garden City v. Trigg, 47 Pac. 524; Heller v. Garden City, 48 Pac. 842; Barber Asphalt Paving Co. v. Harrisburg, 64 Fed. 288 (29 L. R. A. 401); Barber Asphalt Paving Co. v. Denver, 72 Fed. 336; District of Columbia v. Lyon, 161 U. S. (40 Law. ed.) 200; Louisville v. Leatherman, 35 S. W. 625.
    
      J. C. Cross, for respondent:
    In support of the rule of non-liability of the city upon loss of assessment remedy, counsel cites German-American Savings Bank v. Spokane, 17 Wash. 315 (38 L. R. A. 259); Town of Tipton v. Jones, 77 Ind. 307; Peake v. New Orleans, 139 U. S. (35 Law. ed.) 342; Dillon, Municipal Corporations (4th ed.), § 482.
   The opinion of the court was delivered by

Scott, C. J.

The plaintiffs brought this action to recover the amount of certain warrants issued on a contract for the improvement of a street, and have appealed from a judgment against them. There is some contention by appellants that there was a valid contract entered into upon the part of the defendant to pay such warrants independently of the collection of the special fund, but this position is not sustained by the record. The proceedings of the council in providing for the improvement and letting the contract were not sufficient for anything more than a performance at the expense of the abutting property, and the warrants were issued against that fund only. It is conceded by both sides that the remedy under assessment proceedings is lost, and it is contended by appellants that the city is liable generally, in such case. This cause was tried in the lower court before the case of German-American Savings Bank v. Spokane, 17 Wash. 315 (49 Pac. 542), Avas decided. But appellants contend it is not controlled by that case for the reason that there the remedy under the special proceedings was still available and the question of liability was not ruled upon, where it was lost. It does not appear that these plaintiffs resorted to any.proceedings to compel the city to proceed and enforce the assessment proceedings. It is contended by the respondent that such proceedings were diligently pressed and that considerable sums were collected and applied in payment of the warrants issued against the fund, and it is also contended that the city offered to proceed to' foreclose against certain other property, if the plaintiffs would become responsible for the costs of the proceedings, it being alleged that the Avalué of the property was not sufficient to meet the costs. It is not clear whether the remedy was lost in consequence of the exhaustion of the property covered by the special liens which Avas of any value or whether it was barred by lapse of time, but it would not make any difference. We regard all of these latter questions as immaterial, and view the contract as one binding tbe city to pay only from tbe special fund as stated. And whatever tbe fact may be, for tbe purposes of this case we adopt tbe concession that tbe remedy to prosecute tbe assessments is no longer available. But, notwithstanding this, we do not think tbe city should be held bable for tbe reasons set forth in tbe case referred to, although tbe question was not expressly decided in tbe opinion, it not being necessary. But tbe reasons for deciding against tbe plaintiff there apply with equal force against tbe plaintiffs here, although tbe special remedy is lost. Tbe obligation rested upon tbe warrant holders to compel tbe officers of tbe city to proceed with tbe collection of tbe assessments, and, if they saw fit to allow their remedy to become lost through a failure to compel an enforcement of tbe assessment proceedings, they, and not tbe general taxpayers, must bear tbe consequences. They were bound to take notice of what was being done in tbe premises, or of any failure to proceed. If tbe property was exhausted and proved to be inadequate, that loss can not be imposed upon tbe general taxpayers.

Affirmed.

Anders, Beavts and Gordon, JJ., concur.

Dunbar, J., dissents.  