
    [No. 13386.
    Department Two.
    August 14, 1916.]
    Scott Shaser. et al., Appellants, v. The City of Olympia et al., Respondents.
      
    
    Municipal Corporations — Public Improvements — Assessment Roll — Attack—Objections—Appeal—Statutes. Where the city had power to make the improvement and fraud did not inhere in the roll, an independent action to set aside a local assessment cannot be maintained by owners who failed to object and appeal from the confirmation of the roll, as required by Rem. 1915 Code, § 7892-23, although the proceeding was initiated prior to the passage of the act, since the assessment could be subsequently made under the act.
    Appeal from a judgment of the superior court for Thurs-ton county, D. F. Wright, J., entered January 21, 1916, upon sustaining a demurrer to the complaint, dismissing an action to set aside an assessment for a public improvement.
    Affirmed.
    
      Chas. D. King, for appellants.
    
      Thos. M. Vance, Troy Star dev ant, and George R. Bigelow, for respondents.
    
      
      Reported in 159 Pac. 756.
    
   Main, J.

By this action it was sought to have an assessment roll for a local improvement adjudged to be null and void. To the amended complaint, a demurrer was interposed, and by the trial court sustained. The plaintiffs declined to plead further and elected to stand upon the amended complaint. A judgment was entered dismissing the action. From this judgment, the plaintiffs appeal.

The amended complaint is long and contains a somewhat comprehensive history of the improvement from its initiation to the time the present action was instituted. It will be unnecessary here to set forth in detail all the facts as they appear in the amended complaint. It therein appears that the improvement, which was that of the construction of a trunk sewer, was initiated during the year 1910. The assessment roll for this improvement was prepared subsequent to the 4th day of March, 1915, and was confirmed by the city council on the 19th day of May, 1915. No objections to the roll were filed with the city council prior to its confirmation, although notice was published to the effect that the city council would consider objections to the roll on the 19th day of May, 1915.

It should be observed that this is an independent action in equity seeking the annullment of the assessment roll, and is not a case where a property owner or owners had filed objections to the roll with the city council, and from the confirmation of the same appeal to the superior court, and in turn, if the superior court should enter a judgment confirming the roll, appeal to this court.

Section 23 of the local improvement code, Laws of 1911, ch. 98, p. 455 (Rem. 1915 Code, § 7892-23), is as follows:

“Whenever any assessment roll for local improvements shall have been confirmed by the council or other legislative body of such city or town as herein provided, the regularity, validity and correctness of the proceedings relating to such improvement, and to the assessment therefor, including the action of the council upon such assessment roll and the confirmation thereof, shall be conclusive in all things upon all parties, and cannot in any manner be contested or questioned in any proceedings whatsoever by any person not filing written objections to such roll in the manner and within the time provided in this act, and not appealing from the action of the council in confirming such assessment roll in the manner and within the time in this act provided. No proceeding of any kind shall be commenced or prosecuted for the purpose of defeating or contesting any such assessment, or the sale of any property to pay such assessment, or any certificate of delinquency issued therefor, or the foreclosure of any lien issued therefor: Provided, That this section shall not be construed as prohibiting the bringing of injunction proceedings to prevent the sale of any real estate upon the grounds (1) that the property about to be sold does not appear upon the assessment roll, or (2) that said assessment has been • paid.”

It is not claimed that the facts in this case bring it within either of the clauses specified in the proviso which authorize an independent proceeding. Even though the improvement was initiated prior to the passage of this law, the assessment roll being made and confirmed subsequent to the time when the law took effect, is governed by its provisions. This is distinctly held in the case of In re Local Improvement Sewer District No. 1, 84 Wash. 565, 147 Pac. 199. In that case a local improvement, the construction of sewers upon certain streets in the city of Chehalis, was initiated and the contract let for the same prior to the time when the local improvement code went into effect. The assessment roll for that improvement was prepared and confirmed subsequent to the time when the law became operative. Relative to the right of property owners whose property had been included in the assessment to appeal from the decision of the city council confirming the roll and the necessity for procedure, it was said:

“We conclude that Summer sett et al. not only had the right of appeal from the decision of the city council confirming this assessment roll, but that they were by law required to so appeal or abide the .decision of the council as final against them.”

We think the remedy available to the appellants was to file objections to the assessment roll, and in the event of an adverse decision of the city council, to follow the procedure provided for in the local improvement code. Not having followed this remedy, they cannot now be heard to complain by an independent action in equity.

Whether an independent action in equity would lie if the city had proceeded without power, or if there were fraud inhering in the roll, it is not necessary here to determine. There is no claim of lack of power, and the facts stated in the amended complaint do not show fraud.

The judgment will be affirmed.

Morris, C. J., Holcomb, Bausman, and Parker, JJ., concur.  