87 Wash. 98 | Wash. | 1915
This action was begun to restrain the city of Tacoma from collecting, or attempting to collect, a special assessment levied upon appellants’ property in Grandin addition. The city demurred to the complaint on the ground that the court had no jurisdiction of the subject-matter of the action and that the facts stated did not show a cause of action. The demurrer was sustained, and this appeal followed.
The assessment which appellants seek to have cancelled was levied in the manner prescribed by Laws of 1911, p.
It is conceded that the council acted under the law applicable .to an improvement of this nature and that the proceedings were regular, and that appellants made no protest against the improvement or assessment prior to the beginning of this action. Appellants attack the assessment solely on the ground that the city was without power to assess their property in any event for this improvement; that the assessment was without authority in law, and that § 28 of the act of 1911, which the city relies upon as a bar to this action, is therefore inapplicable.
Chapter 98 of the Laws of 1911, p. 441, provides generally for local improvements in cities and towns; provides for the method of levying assessments after due notice to the property owners affected; and pi’ovides that written ob
“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 proceeding 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 for 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.” 3 Rem. & Bal. Code, § 7892-23.
Appellants have filed no objections as provided by this act, and are not attacking the assessment on either ground given by the law as cause for an injunction. Their right to enjoin the collection of the assessment results if at all from a total lack of authority in the council to assess their property for this improvement.
The facts relied upon by appellants to show the lack of authority in the council are, briefly: that the purpose of assessing their property was for the cost of the storm water drainage from the end of the pavement at 29th and Proctor
This claim is based on § 133 of the city charter, which provides that the construction of all trunk or main sewers and repair of all sewers shall be made at the expense of the city. We are not called upon, however, to decide whether the council has assessed appellants’ property for the cost of a trunk sewer. Although the complaint has alleged that the property is assessed to meet the cost of a trunk sewer, the mere ipse dixit of the complaint is not conclusive. While the facts of the complaint are admitted for the purpose of considering the demurrer, they are admitted only in so far as they are well pleaded (Longfellow v. Seattle, 76 Wash. 509, 136 Pac. 855), and not where the matter relied upon is the mere conclusion of the pleader. Where, as here, the resolution and ordinance are attached to and made a part of the complaint, we will look to the whole complaint to ascertain the nature of the improvement. In both resolution and ordinance this portion of the improvement is designated as a storm water drainage. Being such, the appellants’ property would be liable for assessment if specially benefited as stated in the resolution and ordinance. By failing to file written objections before the confirmation of the assessment roll, showing that the improvement was of no benefit to their property, the appellants have brought themselves within the