be derived from the opening of Broadway; and that each and all of said parcels have been assessed in amounts much. less than they would have been respectively assessed if the assessment had been made in proportion to the benefits to be derived by said respective parcels from the opening of Broadway; that parcel No. 39 (property of the plaintiff) as shown on said assessment diagram is not assessed in proportion to the benefit to be derived by it from said opening of Broadway, but is grossly over-assessed, and is assessed in said proceeding an amount much in excess of the amount which said parcel 39 would have been assessed had said assessment been made upon each parcel of property in said assessment district in proportion to the benefits to be derived from said opening of Broadway.

All of the foregoing allegations of the complaint referring to the alleged wrongful methods of assessment and the alleged bias, prejudice, and predetermination on the part of the city officers were denied by the answer of the defendants. The defendants claim here that there is no evidence to sustain the findings as to those issues.

These street-opening proceedings were commenced by an ordinance adopted by the city council on May 27, 1913, whereby the council declared its intention to order the opening of the street between the limits described and to proceed with the matter of said improvement under the provisions of the Street Opening Act of 1903. At the trial of this action the plaintiff was permitted, over the objection of the defendants, to introduce in evidence certain portions of the minutes and records of the city council prior to May 27, 1913. The objection presented was that such minutes and records prior to that date were incompetent, irrelevant, and immaterial for the reason that, under the express provisions of the Street Opening Act of 1903, the proceedings are initiated by the adoption of an ordinance of intention, and that nothing done prior to that time is part of those proceedings. By the evidence thus received it was shown that on April 1, 1913, the city council ordered that the city attorney and engineer prepare the necessary ordinance for the opening of Broadway from Tenth to Eleventh Street and from Twelfth to Pico Street, and that the assessment district should be all the property which would face on the proposed opening between the streets named. On the fifteenth day of April, 1913, the city

council received and referred to the streets and boulevards committee a certain petition, No. 772, which was a petition purporting to be signed by or on behalf of certain owners of property facing on Broadway between Eleventh and Twelfth Streets, and wherein the petitioners made the following statement:

"In the matter of the assessment district to be assessed for the condemnation of land necessary for the proposed opening of Broadway between Tenth and Eleventh Streets, and Twelfth and Pico Streets, we beg to advise you that we are of the opinion that the property facing on Broadway between Eleventh and Twelfth Streets which is dedicated for street purposes by map No. 2289, should be included within the assessment district. We are of the opinion, however, that the assessment which would be levied against the property fronting on said Broadway between Eleventh and Twelfth Streets should not bear the same proportion of assessment as that between Tenth and Eleventh, or between Twelfth and Pico, we having dedicated said street to the city free of all encumbrances, and we consider that in making this suggestion that your honorable body will take into consideration this fact when the assessment for the condemnation of said land is being made."

On April 22, 1913, the streets and boulevards committee reported to the council concerning said petition No. 772, and recommended that the instructions theretofore given the city engineer and city attorney to prepare the necessary ordinances for the opening of Broadway between Tenth and Pico Streets be rescinded, and that there be prepared and presented to the council the necessary ordinance of intention for the opening of Broadway from Tenth to Eleventh Street and from Twelfth to Pico Street in one proceeding; and "that the board of public works in preparing the assessment shall take into consideration the prayer of the petitioners and shall levy the assessment according to petition No. 772." The minutes show that this report as read was adopted and the "map of the assessment district" was approved. The context shows that this map was merely a map of the proposed assessment district which had been presented with another petition (numbered 789) of property owners within the proposed district.

It should be kept in mind that all of these proceedings which occurred in April, 1913, preceded the ordinance of

May 27, 1913, and therefore are not a part of the procedure legally necessary and pertaining to the proceedings under the Street Opening Act of 1903 and upon which the validity of the assessment must depend. The evidence of such preliminary action on the part of the council cannot have any bearing upon the merits of this case, unless it can be maintained that in connection with other facts alleged and proved, it tended to establish the fact that the city council willfully and fraudulently refused to assess property in accordance with benefits received, and that it did willfully and fraudulently over-assess the property of the plaintiff in order that it might give credit to other property owners, because those owners had previously dedicated for street purposes that portion of Broadway between Eleventh and Twelfth Streets. The record is destitute of evidence that petition No. 772 and the approval thereof by the council was ever relied upon or used in any manner by the board of public works or city council in their proceedings conducted pursuant to the ordinance of May 27, 1913, unless it be true that the assessment itself as finally approved by the council furnishes evidence sufficient to establish that it was made and intended to be made upon the basis of such petition and recommendation.

The assessment was made by the board of public works as the law requires. There is no evidence that the board of public works or any person connected with it ever knew anything about petition No. 772 or the recommendations or orders of the city council concerning that petition, to which we have referred. Neither was the board bound to take notice thereof. Viewing the assessment as made by the board of public works, it stands before us the same as if said preliminary proceedings had not existed, and it must be regarded as wholly uninfluenced thereby. When in due time the assessment as made by the board of public works and the protests of the plaintiff and other property owners came on for hearing before the city council, the record shows that the protestants were given a complete hearing. Thereupon the assessment as made by the board of public works was approved by the council without changes, except for the correction of some minor errors which may here be disregarded.

Section 19 of the Street Opening Act of 1903 (Deering's 1915 Gen. Laws, Act No. 3928), which provides for a hearing by the council of objections to the assessment, declares that

"the action of the council upon such objections and assessment shall be final and conclusive in the premises." Similar provisions are contained in other street assessment statutes which have been the subject of judicial investigation wherein the courts of this state have given full recognition to the power of the city council to render "final and conclusive" judgment concerning street assessments. Duncan v. Ramish, 142 Cal. 686, [76 Pac. 661], related to an assessment under the street improvement law commonly known as the Vrooman Act. The proceeding in that case was for grading, graveling, and other street work. Referring to the refusal of the trial court to admit evidence offered for the purpose of proving that the benefits accruing from the improvement of the street were not in excess of the damages caused thereby and also not in excess of the assessment against the lots for the expenses of the improvement, the supreme court said: "It is true that local assessments are said to be imposed on the theory that the property adjacent to the improvement receives special benefit therefrom. But this is a matter which is for the determination of the legislative authority of the state, acting through its established agencies for the government of political subdivisions, or directly by the legislature of the state, as that body may see fit. It is enough for the local property owner that he has a right to be heard before the city council upon the question, by filing a petition of remonstrance in the proceeding prescribed by law, setting forth his reasons why the improvement should not be made. Upon this the council must decide the question, and its decision is final." In United Real Estate Co. v. Barnes, 159 Cal. 243, [113 Pac. 167], the proceeding in question was under the act of March 6, 1889 (Stats. 1889, p. 70), providing for the opening of streets. It was held that the decision made by the council was conclusive upon the plaintiff, and Duncan v. Ramish, supra, was quoted as authority for the decision. Referring to Duncan v. Ramish, the court said: "This case, it is true, arose under the Vrooman Act in a proceeding for paving or macadamizing a street, and not under the Street Opening Act. But the legislative power of the State, exercised in both instances by the city council, is the same in one case as in the other, the provisions of the statute as to the proceedings in the council and the conclusive effect of its decisions are substantially the same and the same principles must apply." In

Cake v. City of Los Angeles, 164 Cal. 705, [130 Pac. 723], the action was one to recover moneys paid by the plaintiff under protest, her contention being that the assessment was void and also that she was compelled to pay a sum greater than that for which she was legally liable. That proceeding was under the Street Opening Act of 1903. The plaintiff had filed objections to the assessments, which objections were overruled by the city council. Judgment against the plaintiff was affirmed by the supreme court. In its decision that court said: "Plaintiff's allegation that the assessments upon her two lots were inequitable was a matter upon which she had the right to be heard and was heard before the council. She makes no charge of fraud in connection with the assessment of her property, and, without such a charge, the determination of the council is final." Section 26a of the Street Opening Act of 1903 does not, in our opinion, change the rule which, as elsewhere stated in that statute, makes the council's decision, when acting within its jurisdiction, "final and conclusive."

It is the necessary effect of these decisions that the assessment challenged in the present case must be sustained unless the facts alleged and proved show that the city council refused to decide upon the merits the objections urged against the assessment, and that instead thereof it willfully based its order upon illegal considerations which were inconsistent with making an assessment in proportion to the benefits to be derived from the improvement, and which in effect amounted to a fraud upon the rights of the plaintiff. It is the contention of the plaintiff and it is the theory of his action that these elements of fraud are presented and established in this case, and that in fact there was no "assessment" made, but only an arbitrary imposition. Spring Street Co. v. City of Los Angeles, 170 Cal. 24, [148 Pac. 217], is relied upon as sustaining this contention. That was a proceeding for the widening of Eighth Street, in the city of Los Angeles. After the board of public works had filed its assessment, protests were entered against it by certain property owners. Upon the hearing of those protests the council ordered that the board of public works file a new assessment, and that a report made to the council by the streets and boulevards committee with reference to the assessment be referred to the board of public works for consideration in making the new assessment. The