habitants of the city in many business ways and at the same time help make the city a great as it is a growing city of industry and commerce. The statute (Stats. 1889, p. 70), which is the basic authority for the vacation of public streets, contains a provision for the ascertainment of expenses, damages, etc., in connection with the vacation of a given street, and the levying of an assessment for the payment thereof; but in the instant case, it appears by the final ordinance of vacation "that there are no damages, costs or expenses arising out of said work and that no assessment is necessary for said work"-again supplying the inference, at least, that the entire scheme was one for the sole benefit of the defendant Famous Players-Lasky Corporation. The evidence showed that no public benefit whatsoever accrued, or was expected to accrue, from the closing of the street. far as the record discloses, nothing was contemplated by the city council in the way of a systematic rearrangement of public streets, or the construction of any public improvement, or the platting of any public park, or anything of a similar character, which would either necessitate, or render advisable, the vacation of the street. The effect of the abandonment of the street was to take from the public whatever advantage or convenience the use of a well-kept street afforded, and to substitute nothing of a public nature in its place. Negativing the provisions of the statute, neither the public interest nor public convenience required or in any manner necessitated or suggested the closing of the street; on the contrary, every reasonable consideration would indicate that it was altogether to the advantage and benefit of the general public that the street should remain open to public use. It follows that the only interest or convenience subserved by the act of the city council in ordering the vacation of the street was the private interest of the defendant Famous Players-Lasky Corporation. In such circumstances the precedents heretofore cited are ample authority for the action of the lower court not only in maintaining its right to inquire into the real purpose and the result of the ordinance, but in declaring such ordinance invalid. Any other rule would permit the city council to legally close any or even all the principal streets of a city. For instance, if we were to assume the true rule to be that, upon the mere recital in the ordinance of abandonment that the

public interest or convenience so required, the decision by the city council, as expressed in its ordinance, becomes final and conclusive, and beyond the reach of judicial inquiry, nothing would prevent the city council of the city of Los Angeles from effectually closing Broadway in its entire length, nor a similar body in the city of New York from closing Wall Street. It cannot be that in such circumstances, coupled with a showing, such as here, that the whole scheme was simply one in the proposed aid of a private concern, and against real public interest and convenience, the courts would be powerless to render adequate relief and substantial justice. The rights of the public cannot be overwhelmed and defeated by any such subterfuge; they cannot be made to depend upon the exercise of either individual whims or fancies of members of the city council expressed through the medium of a legislative body. It is essentially a judicial question whether the vacation of a street be for a public or for a private benefit. Otherwise the will of the city council as expressed in its ordinance of vacation, through the simple expedient of declaring such vacation to be a public benefit, would become supreme, no matter how arbitrary such action nor how great the abuse of discretion so exercised. (New Central Coal Co. v. George's Coal C. & I. Co., 37 Md. 560.) Legal fraud may consist in a gross abuse of discretion, and the facts in the instant case indicate at least such gross abuse. That in such circumstances the act of the city council in vacating the street in question is not conclusive upon the courts, see Ellis v. Commissioners, 38 Cal. 629, and the same principle of law is announced in the following cases: Los Angeles etc. Co. v. County of Los Angeles, 162 Cal. 164 [9 A. L. R. 1277, 121 Pac. 384]; Spring Street Co. v. City of Los Angeles, 170 Cal. 24 [L. R. A. 1918E, 197, 148 Pac. 217]; La Grange etc. Co. v. Carter, 142 Cal. 560 [76 Pac. 241].

By far the greater part of that portion of the appeal herein which involves the order by the trial court denying defendant's motion to strike certain portions of the complaint is disposed of by what has been said heretofore upon the question of the right of the court to inquire into the power of the city council in passing the ordinance of abandonment of the street in question. Such portions of the motion to strike as are not so covered, while possibly not

necessary allegations of the complaint, were harmless as affecting the main issue.

That appellant's motion to dismiss the complaint for the alleged reason that the plaintiff was improperly and unlawfully authorized by the attorney-general was not well taken is settled by the rulings in the following cases: People v. Beaudry, 91 Cal. 213 [27 Pac. 610]; People v. Davidson, 30 Cal. 388; People v. Gold Run D. & M. Co., 66 Cal. 152 [56 Am. Rep. 80, 5 Pac. 1152; People v. Pope, 53 Cal. 437; People v. Blake, 60 Cal. 497; People v. Reed, 81 Cal. 70 [15 Am. St. Rep. 22, 22 Pac. 474]; People v. Hibernia Sav. etc. Society, 84 Cal. 634 [24 Pac. 295]; People v. Oakland etc. Co., 118 Cal. 234 [50 Pac. 305].

By reason of the decision herein that plaintiff is entitled to the relief demanded in the complaint, it becomes unnecessary to pass upon plaintiff's appeal from the order of the trial court denying the application for a preliminary injunction.

The judgment is affirmed.

Conrey, P. J., and Curtis, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on August 1, 1923, and the following opinion then rendered thereon:

THE COURT.-In the petition for rehearing herein, it appears that objection is taken by appellants to the statement contained in the opinion to the effect that the determination by the city council as to the question of public interest and convenience requiring the closing of the street was made before any protest was filed and necessarily before any hearing was had thereon. The facts are that after the petition for vacating the street was presented and before the ordinance of intention was passed, a protest was filed, but it is only after the ordinance of intention has been passed and notice of public work has been posted by the street superintendent that protests are authorized to be filed. (Sec. 4, Stats. 1889, p. 70.) It was regardless of such protests that the city council made its determination, as expressed in its ordinance of intention, "that the public interest, necessity and convenience" required that the street be

closed. Other protests, which were subsequently filed, were overruled by the city council. [3] The final ordinance contains no declaration to the effect that the public interest or convenience requires that the street be closed; but it must be conceded that the case of Brown v. Board of Supervisors, 124 Cal. 278 [57 Pac. 82], is authority for the rule that "the adoption of the order is a determination by the board that the public interest or convenience requires the improvement." After such modification of the original opinion herein, we are satisfied with the views of the court as therein expressed.

The petition for rehearing is denied.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 5, 1923.

MEMORANDUM CASES.

[Civ. No. 4109. Second Appellate District, Division One.-May 2, 1923.]

THE PEOPLE ex rel. CRAM, Appellant, v. REDLANDS HIGH SCHOOL DISTRICT et al., Respondents.

[1] SCHOOLS AND SCHOOL DISTRICTS-ANNEXATION TO HIGH SCHOOL DISTRICT TAXATION-CONSTITUTIONAL LAW.-Judgment affirmed upon authority of People v. San Bernardino High School District, ante, p. 67.

APPEAL from a judgment of the Superior Court of San Bernardino County. J. W. Curtis, Judge. Affirmed.

The facts are identical with the facts stated in People v. San Bernardino High School District, ante, p. 67.

U. S. Webb, Attorney-General, and Henry Goodcell for Appellant.

Walter J. Hartzell for Respondents.

HOUSER, J.-The facts in this case are identical with the facts as stated in the case of People ex rel. Thompson v. San Bernardino High School Dist. et al., ante, p. 67 [216 Pac. 959], and the same points are raised in each of the cases. [1] Upon the authority of People ex rel. Thompson v. San Bernardino High School Dist., the judgment herein is affirmed.

Conrey, P. J., concurred.

Curtis, J., being disqualified, did not participate in the foregoing opinion.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 29, 1923.