These actions were filed separately, but consolidated for trial and on appeal. In one, plaintiff seeks to recover the sum of $398,756.91, which amount was paid to the City of Los Angeles as taxes under an assessment levied by the State Board of Equalization. In the second, plaintiff seeks to recover, under a similar action, the sum of $909,-039.49 against the County of Los Angeles. At the close of plaintiff’s case, and in each action, the trial court granted" a nonsuit. The appeals are taken from judgments of dismissal thereafter entered.

The complaints in each case, so far as the statement of the cause of action is concerned, are substantially the same. They allege the corporate character of plaintiff, and state facts showing it to be a public utility, engaged in a general telephone and telegraph business in the State of California; that the State Board of Equalization assessed, in Los Angeles County, for the purposes of taxation, for the fiscal year ending June 30, 1936, certain property of plaintiff for the sum of $52,097,-585, of which amount the sum of $34,235,177 is claimed to be void. As to the City of Los Angeles the figures are $37,528,-530 and $24,587,483, respectively; that thereafter a petition for re-assessment of said property by said board was denied; that taxes in the amount above stated were paid under protest; that in making said assessments, said board acted arbitrarily and capriciously and in deliberate, wilful, and systematic disregard of assessments of other property in said county for said fiscal year, and of the method used in making of the same, and of the extent to which, and in the manner in which, other property in said county was taxed for said fiscal year; that said assessment bears no relation to the actual value of said property of plaintiff in said county; that said assessment is proportionately higher than assessments of other property of the same class or classes; that said assessment discriminates against plaintiff, and that it is “ con trary to, and in violation of the rights, privileges and immunities of plaintiff under Section 13 of Article I, and Section 14 of Article XIII of the Constitution of the State of California, and under the Fourteenth Amendment to the Constitution of the United States. ’ ’ 0

From 1911 to 1934, inclusive, the property of public utilities was taxed in California by the imposition of taxes proportionate to gross receipts. On June 27, 1933, a constitutional amendment was adopted, whereby the aforesaid 1 ‘ gross receipts” system of taxation was superseded by the system now embraced in the Constitution, article XIII, sections 14 and 16 and the statutes implementing these constitutional provisions. This new system went into effect in 1935. The chief features of the new system of taxing public utilities in California are as follows: The State Board of Equalization is required to assess, annually, all property, other than franchises, of such enterprises at its actual value. The owners of public utility property are offered opportunity to appear and apply to the board for correction of assessments made by it. Upon completion of the assessments, the board is required to transmit to the respective local taxing jurisdictions an assessment roll showing the assessments against public utility property located therein. The property so assessed is then subject to taxation locally at the rates fixed for taxation of property in the respective taxing jurisdictions. In 1935 the board made its first assessment under the revised system. Appellant complains of the assessment so made of its property in the County of Los Angeles, alleging that the assessment is $34,235,177 too high on its property in the county, and $24,-587,483 too high on that part thereof located in the city.

The authority of the Board of Equalization for making the assessment is derived from article XIII, section 14 of the Constitution of the State of California, which provides, among other things, that the properties of public utilities shall be assessed annually by the State Board of Equalization at the actual value of such property. Said section also provides: That “all property so assessed shall be subject to taxation to the same extent, and in the same manner as other property.”

We may start with the premise that the law contemplates that utility property and common property bear the same burden of taxation in proportion to value. All parties agree that this is the correct rule in California.

As to the issues as they were defined at the trial, there was no attempt by plaintiff to prove the actual values of its properties. It therefore follows that the allegation of the complaint, based upon the fact that the assessment “bears no relation to actual value”, may be disregarded. The following excerpt from the argument of counsel for appellant goes a long way toward clarifying and restricting the issues:

Summing up the matter, it appears that the real question actually litigated was whether or not, by means of comparison, the property of appellant was assessed higher than other property of the same class or classes.

It is urged by appellant that, having proven, in the action against the city, their property was assessed by the board for $37,528,250, whereas the city would have assessed it for $24,587,483 less, and as to the county, $52,097,585 and $34,-235,177, respectively, the presumption arose that the assessment by the board was constructively fraudulent. It relies upon Birch v. County of Orange, 186 Cal. 736, 742 [ 200 Pac. 647 ]. There, the board of supervisors was charged with acting arbitrarily and fraudulently in respect to their act in fixing the assessed value of plaintiff’s oil property. Plaintiff relied upon proof of assessments made upon surrounding oil lands almost identical in character, development, production and value. The undisputed evidence showed that plaintiff’s land was assessed at a rate from ten to fifteen times that of such other surrounding properties. The court held that the facts made out a case, and that it was error to grant a nonsuit. The opinion states: “A grossly inequitable and palpably excessive over-valuation of property for taxation may be held constructively fraudulent.” No California cases are mentioned or cited, but several cases from other states are relied upon. The rule in California upon this question is thus otherwise stated in the same volume:

“An assessment grossly disproportionate as compared with other assessments is an excessive assessment, since the final object of the assessment is to distribute the tax ratably on the various parcels of property subject to it, and an unequal assessment on one parcel as compared with others means that an excessive portion of the tax falls on that parcel. But the fact that an assessment is excessive, even though grossly so, does not itself make the assessment invalid. This is the rule generally followed in other jurisdictions and has been declared by at least three decisions of this court, namely, Los Angeles v. Western etc. Co., 161 Cal. 204 [ 118 Pac. 720 ]; Los Angeles etc. Co. v. County of Los Angeles, 162 Cal. 164 [9 A. L. R 1277, 121 Pac. 384 ]; Miller & Lux v. Richardson, 182 Cal. 115 [ 187 Pac. 411 ]. In the first of these eases, the finding of the trial court was, as here, that the assessment ‘was grossly excessive’, and it was held, nevertheless, that it was insufficient as a ground for invalidating the assessment. ’ ’ (Pacific Coast S. S. Co. v. Richardson, 186 Cal. 70 [ 198 Pac. 1034 ], at p. 72.).

The latter appears to be the well settled rule in this state. It may be observed, however, that in the Birch ease the comparison was made between assessments made in the same county by the same assessing agency. In the instant case an attempt is made to make a comparison between the assessments of two distinct agencies—The State Board of Equalization and the County of Los Angeles (acting for the city, also), and in respect to different properties owned by plaintiff. The significance of this difference will be later pointed out.

The rule governing the right of appellant to bring an action of this character is stated in the case of Los Angeles G. & E. Co. v. County of Los Angeles, 162 Cal. 164 -167-168 [ 121 Pac. 384 , 9 A. L. R 1277], as follows:

A correct statement of the law is also found in the case of Oregon & C. R. Co. v. Jackson County, 38 Or. 589 [ 64 Pac. 307 , 65 Pac. 369 ] (9 A. L. R. p. 1286):

In Utah Const. Co. v. Richardson, 187 Cal. 649 -654-6-55 [ 203 Pac. 401 ], it is stated:

In the latter case, as here, a nonsuit was granted in an action to recover taxes paid under protest, and it was held that “the evidence was too indefinite and unsubstantial to overcome the presumption that the board (State Board of Equalization), had properly performed its official duties.” That is the precise question presented upon this appeal, and we will direct our attention to the evidence produced by appellant, bearing in mind that:

At the outset it might be observed that, under its charter, the City of Los Angeles has adopted and uses the same system of assessing as the County of Los Angeles. Consequently, there is but one assessment for both, in respect to property within the city limits. The property here involved is situated both within and without the city.

The property assessed consists of buildings, which represent about fourteen per cent of the total; motor vehicles, which represent about three-tenths of one per cent; and other tangible personal property, representing about eighty-six per cent. The fiscal year for which this assessment was made was the first year which came under the operation of article XIII, section 14 of the Constitution, and the assessor consequently had no right or authority to assess said property for said year. It follows that there could be no legal assessment by the county for said year, and thereafter. The case of appellant, as it admits, rested upon the theory of comparison alone. In lieu of producing any legal assessment for the year appellant relied upon certain figures taken from the office of the assessor, and sought to use them to prove inequality of assessment. The source of these figures appears from the testimony of the deputy county assessor, which was substantially as follows:

The records mentioned by the witness, over the objection of respondents, were admitted in evidence. Upon them appellant bases the over-valuation of its property in the amounts we have heretofore indicated. It might be pointed out, however, that as to tangible personal property (other than motor vehicles), there were no records whatever in the assessor’s office. Consequently, that property was not covered directly by the entries testified to by the witness mentioned. Such property consisted of special telephone apparatus, telephones, wires, cables, and similar articles. The figure at which the last mentioned property should have been assessed, according to the theory of appellant, is derived by a devious method which is, however, ultimately based upon the records testified to by the witness mentioned—that is, the building slips and maps. Thus, it appears that the comparison upon which the entire case of appellant rests, is between the actual assessment by the Board of Equalization, and (1) as to buildings, the figures taken from said block books and maps which may be taken as the amounts for which the county would have assessed the property if it had the right to make a legal assessment for the year in question; (2) in respect to motor vehicles, values taken from a “blue book” in the office of the assessor, and which he was accustomed to follow in assessing such property, and which was published by a local automobile dealer; and, (3) in respect to other tangible personal property, by the application of a formula mentioned below, which is based, however, upon the values placed upon buildings as they appear in the block books and maps mentioned. The assessor testified that if he had assessed appellant’s buildings in 1935, he would have assessed them at approximately $2,400,000. He did not testify as to the assessment he would have made in 1935 in respect to motor vehicles or any other property. Appellant’s position as to asserted discriminatory assessment of appellant’s tangible personal property other than vehicles may be summarized as follows: The building slips kept by the local assessor contain figures which appellant asserts are the values that would have been assigned by that officer to appellant’s buildings in Los Angeles County, if he had been vested with the power of assessment thereof. The total of the building slip figures on appellant’s buildings in Los Angeles County is divided by the total supposed replacement cost new less depreciation of those buildings, as calculated and estimated by appellant, and the quotient is found to be 27.4 per cent. On the theory, apparently, that replacement cost new less depreciation inheres in all property to the same extent and is a constant element of value in buildings and personal property, appellant calculates and estimates the supposed replacement cost new less depreciation of that part of its tangible personal property allocated by it to Los Angeles County, other than vehicles, and applies to it the per cent relation of building slip figures to supposed replacement cost new less depreciation of its buildings in Los Angeles County (27.4 per cent). The result is assumed to be the total maximum valid assessment of appellant’s tangible personal property in Los Angeles County, other than vehicles, if personal property is assessed at the same ratio of full value as are real estate and improvements. Asserting that personal property is assessed in California at only 33.33 per cent of full value, while real estate and improvements are assessed at 46.66 per cent thereof, appellant concludes that its personal property in Los Angeles County should be assessed at only that proportion of full value which 33.33 per cent bears to 46.66 per cent or 71.43 per cent. Accordingly, appellant applies to the supposed maximum assessment of its personalty, if personalty generally is assessed at the same “level” as real estate and improvements the factor of 71.43 per cent and derives what is asserted to be the maximum lawful assessment of its tangible personalty, other than vehicles, in Los Angeles County, or the figure $15,338,865. The difference between the figure so derived and the board’s assessment of appellant’s tangible personalty, other than vehicles, in Los Angeles County, $31,776,740, is the asserted fraudulent part of the assessment of appellant’s tangible personal property other than motor vehicles. Motor vehicles represent 23 per cent of the total tangible taxable personalty in Los Angeles County. Following the above line of reasoning, appellant calculated and estimated the replacement cost less depreciation of its motor vehicles in Los Angelas County, and, applying the value figures in the “blue book”, concludes that the asserted maximum allowable assessment of its vehicles is 19.42 per cent of their supposed replacement cost new less depreciation. From the foregoing it deduces that its tangible personal property cannot lawfully be assessed in excess of 71.43 per cent of 27.4 per cent of its replacement cost less depreciation.

We are of the opinion that the presumption in favor of the action of the board and the validity of the assessment could not be overcome by evidence of the character indicated. Appellant’s case is predicated entirely upon a claim that the board’s assessment was constructively fraudulent. In the case of Miller & Lux, Inc., v. Richardson, 182 Cal. 115 -128 [ 187 Pac. 411 ], it is stated:

There is no direct evidence of fraud, such contention being based solely upon an inference assertedly deducible from “comparative” assessed values of its buildings. This comparison is of the hypothetical, unequalizcd amounts the County Assessor would have assessed its property for if the law cast upon him the duty of making such an assessment, which it did not. Such a showing is predicated upon a highly conjectural and speculative “yardstick” theory of comparisons, and is too unsubstantial to sustain judgment in favor of appellant. In Hannon v. Madden, 214 Cal. 251 -267-268 [ 5 Pac. (2d) 4 ], it is said:

It must be remembered here that no attempt was made by appellant to show that the method adopted by the board in making the assessment was not that prescribed by law, nor is there any evidence from which it can be inferred that the board was guilty of a conscious failure to exercise that fair and impartial judgment which the law requires of it.

Another reason why the act of the board cannot be impeached by such evidence, (assuming that the entries in the block book and the maps were the equivalent of a valid assessment), is that under the constitutional provisions mentioned above, the power to assess public utility property is placed exclusively in the hands of the Board of Equalization as a sole, central assessing agency. This is significant, because it is the common function of central assessing agencies to evaluate such property as a whole in order to assure the assessment of those values which cling to the entire property as a unit, and in order to assure the assessment of the same type of property at uniform value throughout the state. These are the reasons for central assessment of appellant’s property as distinguished from local assessment thereof in all of the fifty-eight different counties. The law recognizes that where a central agency is given the duty to assess public utility property while other property is assessed by local officers, the very fact of such segregation bespeaks an intention that the central assessment might be different from the values of the local assessor. In Columbus Southern Ry. Co. v. Wright, (1894) 151 U. S. 470 [14 Sup. Ct. 396, 38 L. Ed. 238, 243 ] (quoting from the opinion in Franklin Co. v. Nashville, C. & St. L. Ry., (Tenn.) 12 Lea, 521 , 539) :

In Union Pacific R. R. Co. v. Ryan, (1885) 113 U. S. 516 [5 Sup. Ct. 601, 28 L. Ed. 1098 ], the railroad corporation unsuccessfully attacked as discriminatory a unit assessment made by the State Board of Equalization of Wyoming and the allocation of values by that board to its property in Cheyenne claiming, as does appellant herein, that such method of assessment was unconstitutional in view of the method of local assessment of common property. The court explained the reason for central assessment of public utility property as follows ( 28 L. Ed. 1100 -1101) :

In San Francisco etc. Railway Co. v. Scott, (1904) 142 Cal. 222 [ 75 Pac. 575 ], the court was required to decide whether street railways fell within the category of “all railroads operated in more than one county”, the property of which was required to be centrally assessed by the State Board of Equalization under California Constitution, article XIII, section 10, as that section then read. In discussing the reasons impelling to central assessment rather than local assessment of railroad property, this court said, at pages 225-226:

A valid reason for assigning the physical property of public utilities to a state board for central assessment thus is recognized to be the need for avoiding the inequality which otherwise would mark the assessment of the same kind of property if the various local assessors were left to treat it the same as other property. Central assessment finds one of its chief merits in the uniformity of value which it assigns to like property wherever found. Central assessment insures that a mile of telephone wire in one county will receive the same assessment treatment as is accorded like property in all other counties. Appellant’s view of the law wholly negatives this important reason for central assessment of its property. It is the essence of appellant’s case that the State Board of Equalization must assess a mile of telephone wire, or a telephone building in Los Angeles County, at the same value as that which the local assessor would assess it if given the opportunity. Appellant’s contention means that a mile of wire or a building in Los Angeles County will be assessed at a different value than that at which similar property is assessed in any other county where the local assessor’s opinion of the value of such property happens to differ from that of the Los Angeles County assessor. Thus, a primary reason for a single, central assessment of utility property is completely ignored, and appellant advocates the very result which central assessment seeks to avoid. It follows that the jurisdiction of the board being state-wide, any comparison, in proof of an over-assessment must be upon a similar basis. If the percentage of value applied by the board grossly exceeds the percentage of value for which common property throughout the state is assessed for purposes of general taxation, and if it were proved that the board acted wilfully and in disregard of the law, a cause of action would be made out. That would require proof of the value of the property of appellant. No such proof was offered here.

In concluding, we might observe that the ease presents some very unusual features—that is—unusual in the sense that no cases called to our attention by either side, involve the question under consideration. In the first place, it is an attempt to invalidate an assessment upon the ground of constructive fraud, and in violation of the constitutional provision mentioned above, which requires such property to be assessed by the board at its “actual value’.’, but no attempt is made to establish the value of the property of appellant. In the second place, the over-valuation is sought to be proven not through the comparison with assessments by the board of the properties of others similarly situated, but by other assessments (if it be conceded that they had the dignity and official character of assessments), made upon the identical properties of appellant by another different and independent assessing agency. The method of attack in this case is far different from that adopted in Birch v. County of Orange, supra. There, plaintiff, in proving excessive valúa tion, introduced evidence of the assessment of the same assessor in the same county, covering the lands of several other oil companies. Recovery here, therefore, cannot be had upon the theory of an unjust and wilful discrimination upon the part of the board. That could only be proven by a comparison of other assessments made by the hoard itself, upon property similarly situated. In order to be discrimination, there must be two acts relating to different parties, and they must be performed by the same taxing agency. If any recovery can be had, under the pleadings here, it must rest upon the contention that the board acted in violation of the constitutional provision quoted above, relating to equality of taxation. Both parties agree that the word “taxation”, as there employed, includes “assessment”. But plaintiff cannot single out an assessment made in one county only as a basis for comparison. It must prove that the assessment made by the board, of the property here involved, is based upon a percentage of value which grossly exceeds the percentage of value for which common property throughout the state is assessed for general purposes of taxation, by the counties thereof. This must necessarily follow, for the reason that the board has state-wide jurisdiction. The record shows that while counties vary in the percentage of value which each has applied, the ratio of value throughout the state is 46.66 per cent. Such proof was not offered here.

It is also contended by respondent city that the non-suit was properly granted, for the reason that plaintiff did not allege or prove that it had presented the claim against the city in compliance with section 376 of its charter which reads as follows:

In the case of Brill v. County of Los Angeles, 16 Cal. (2d) 726 [ 108 Pac. (2d) 443 ], thruquestion was decided against the contention here made. That action was brought to recover taxes paid under protest to the county for the city. It was held that section 3819 of the Political Code, providing the procedure for the recovery of taxes paid under protest was controlling, and that said charter provision was not applicable, and that under said section of the Political Code the presentation of a claim is not a prerequisite to the commencement of such an action.

Appellant having failed to produce any substantial evidence to sustain the allegations of its complaint, and having failed to prove that the State Board of Equalization, in making the assessment, acted arbitrarily and in wilful disregard of the law, it follows that the trial court properly granted respondent’s motion for nonsuit in each action.

The judgments are affirmed.

Pullen, P. J., and Thompson, J., concurred.

Appellant's petition for a hearing by the Supreme Court was denied July 24, 1941. Carter, J., and Traynor, J., did not participate therein.