(dissenting) — Although the decision of the majority is but a Pyrrhic victory for appellants, it unfortunately introduces marked discord in our decisions. Under the statute quoted in the majority opinion, § 23, ch. 98, Laws of 1911, p. 455 [Rem. Comp. Stat., § 9375], appellants are estopped to institute and maintain this action, and we have so held in a number of cases.
In Goetter v. Colville, 82 Wash. 305, 144 Pac. 30, Judge Main, speaking for the court of the provisions of that section, said:
“The language of the statute is clear and explicit and mandatory in its terms.”
In Grandin v. Tacoma, 87 Wash 98, 151 Pac. 254, a per curiam opinion in which the section quoted is dealt with, where no objections had been filed by the property owners to the assessment and no appeal taken from the action of the city council, it was said:
“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 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.....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 estoppel of § 23 of the act, and this action not being one of the exceptions provided for therein, the court was without jurisdiction of the subject-matter.”
It will be recalled that the exceptions in the proviso of § 23 permitting the bringing of injunction proceedings to prevent the sale of any real estate are, (1) that the property about to be sold does not appear upon the *255assessment roll, or (2) that the assessment has been paid.
In North American Lumber Co. v. Blaine, 89 Wash. 366, 154 Pac. 446, we again dealt with this section, Judge Parker, speaking for the court, saying:
“This court has repeatedly held that such a determination by the city council, had upon due notice under previously existing statutes similar to this, became final as to all owners of property so assessed, unless the assessment was attempted to be levied under such circumstances that the city was exceeding its jurisdiction over the subject-matter. This question is reviewed at some length in Rucker Brothers v. Everett, 66 Wash. 366, 119 Pac. 807, 38 L. R. A. (N. S.) 582, where our former decisions are noticed. The doctrine was adhered to in Grandin v. Tacoma, 87 Wash. 98, 151 Pac. 254, involving an assessment under this statute.”
In Giles v. Olympia, 115 Wash. 428, 197 Pac. 631, 16 A. L. R. 493, where the property owners had appeared before the city council upon due proceedings, made their objections, which were denied, and appealed to the superior court from the action of the city council, we sustained the objections and defenses of the property owners; but in Lee v. Olympia, 122 Wash. 616, 211 Pac. 883, where the property owners in the same local improvement district as in the last cited case had not appeared before the city council and objected and set up their defenses, afterwards bringing an independent action like the one at bar, we denied their right to relief, all the present judges concurring in that decision except Judges Mackintosh and Pemberton.
There is no doubt in my mind that the judgment in this case should be affirmed, and the litigation and expense to the city and property owners ended. I therefore dissent.
Fullerton, Parker, and Mitchell, JJ., concur with Holcomb, J.