Gill

Action to recover $2,405.20 alleged to have been paid by plaintiff to the street superintendent of defendant nnder protest, as an assessment in a street opening.

The city of Oakland by its council, in 1889, adopted a resolution of intention to open and extend Filbert street in said city between certain points, The proceedings were taken under the street opening act of 1889 (Stats. 1889, p. 70). Eo question arises as to the regularity of the proceedings and the collection of the assessment as originally levied. A deficiency occurred of $6,641.31 in the collections nnder the assessment, to meet which the council advanced this amount by transfer from the general fund of the city, pursuant to section 18 of the act, and upon condition that the general fund should be reimbursed out of a supplemental assessment thereafter to be made. Such supplemental assessment was duly made, and no question arises out of this supplemental assessment. But after the collection of the whole of this assessment there still remained a deficiency *337 in the street opening fund of $3,315.45 to meet the fund transferred from the general fund. A second supplemental assessment was ordered for the purpose of…