Denied July 14, 1914.
On Petition for Rehearing.
Mr.. Justice Eakindelivered the opinion of the court.
The writ in this case brings up for consideration only the objections to the reassessment of the cost of *441the improvement of Seventeenth Street, filed by the plaintiff before the council on December 13, 1909, pursuant to the notice of date November 24, 1909, appointing December 22d for hearing said objections by the council. The so-called objections, instead of being briefly and concisely stated separately from the argument, are so mingled with the recitals, suggestions and criticisms that it is difficult to find just what is the real objection. It is first objected that the reassessment is as illegal and void as the one set aside by the court, and that it was not made in the manner provided by law, but should have been made in accordance with the special benefits; second, that the cost of improvement in front of each lot was assessed thereto contrary to the charter; third, that the assessment includes the repair of two separate parts of Seventeenth Street in one proceeding, and is therefore illegal; fourth, that it extended the base and support of the fill for part of the street on. to adjacent property without right, and charged the cost of the extension as part of the expense of improvement, thus rendering the proceeding void and making it impossible to levy an assessment thereon; and, fifth, there is special objection by plaintiff Lewis as to matters affecting only the payment of her assessment and not the regularity of the proceedings.
14. The first four objections relate to questions of law which need no special finding of fact by the council: Hughes v. City of Portland, 53 Or. 389 (100 Pac. 942).
15,16. The petitioners are not affected by the fifth objection nor interested therein, and it cannot be considered on this review. These objections do not call the attention of the council to just what part of the reassessment was wrong or incomplete, or in what re*442gard, in a manner that it may rectify the assessment or answer the objection. However, considering the matters sought to be questioned, as gathered from the brief and oral argument, we understand there are two principal objections urged to the reassessment: (1) That the assessment is void because part of the improvement is made by extending the incline of the fill beyond the line of the street and upon private property without purchase or condemnation; (2) .that the assessment is made on the theory of abutting costs assessed to the separate lots, instead of according to the special and peculiar benefits derived by each lot to the extent of its respective proportionate share of the costs, as provided by the charter. These two elements relate to the proceeding, and they can be raised by review, as they are shown by the record.
17. Thus the record may be made to disclose that the assessment is accomplished by the charter method; but when the record shows that the charter method has been followed, error in judgment of the facts in relation thereto or in the computation producing the result cannot be reviewed. That can be questioned only by appeal, where a jury trial may be had.
18. In addition to what has been said by Mr. Justice Ramsey in the opinion, we find the petition for rehearing is subject to the same criticism made above to the objections to the assessment that the statement of the ground of the petition should be brief and concise, and made separately from the argument. First, it is urged that the slopes of the fill, being upon private property, to that extent the city is a trespasser, which, it is contended, renders the proceeding void, and the assessment noncollectible. No other lot owner is injured in or affected by that matter, and his remedy was to have enjoined the city in the first instance, or he may now *443sue for damages; but the work of improvement has been done, the whole district has the benefit of it, and the city’s right to the cost is not affected by the trespass.
19. As to the. motion madé in the Circuit Court for an order requiring the auditor to add to the return the proceedings relating to the initiation of the improvement, we find that when a city adopts a resolution to improve a street and notice is given thereof, property owners may file objections or remonstrances against the improvement, and if no objection or remonstrance is filed, then the jurisdiction of the council is deemed complete: Section 378 of the charter. The proceeding for this improvement was commenced in 1903, and no objection or remonstrance was filed thereto. That was the time and place for plaintiffs to have objected to the inclusion of two separate portions of a street in one proceeding, and, the question not being then raised, it was waived. In the year 1908 the assessment of benefits made by the council by ordinance No. 14,144 was reviewed in the Circuit Court by the plaintiffs. Only the manner of making the assessment and the sufficiency of it were questioned. The writ was sustained, the proceedings reversed, ordinance No. 14,144, making the assessment, was held void, and the cause remanded for a reassessment-upon the lots which have been benefited by the improvement to the extent of their respective and proportionate shares of the full value thereof. By that adjudication all irregularities or defects in prior proceedings not reviewed are deemed waived. Therefore the proceedings sought to be added to the return by the motion of plaintiffs are immaterial here, and ordinance No. 14,144 was held void and cannot affect this case. The motion for an additional transcript was properly de*444nied. The reassessment is the effort of the council to make it according to the mandate of the Circuit Court, and is the only proceeding for review.
20. As to the assessment of the cost of the slopes of the fill, the petitioners are only interested in or affected by the extension of the fill beyond the street to the extent that the same has increased the cost of the improvement in excess of what it would have cost if held by a retaining wall, and the cost to the district probably should be reduced that amount, but that is a question of fact, not only requiring the engineer’s measurements and estimates, but the testimony of expert witnesses, as to what was the excessive cost, which cannot be tried out on review. The remedy, if any, of the property owners injured or dissatisfied with the reassessment is appeal under Section 401 of the charter, which is intended to reach just such questions as this, but it does not go to the regularity of the proceedings.
21. As to the second question concerning the method of making the assessment according to benefits, in the preliminary assessment made by the auditor it is stated that he viewed the district and each lot, and advises that the property in the district is benefited to the amount of the cost of the improvement; that he has ascertained what he deems to be the especial and peculiar benefit derived by each lot by reason thereof; that he apportions the cost of said improvement to the lots in accordance with such benefits to the extent of their respective and proportionate shares of the full value thereof, setting out each lot, and the assessment so found. The city council, by ordinance No. 20,989, makes the same statement as to the manner of assessment, and declares the assessment accordingly. There is no suggestion that the manner of making this assess*445ment is erroneous, but only as to tbe result and tbe inclusion of tbe cost of tbe slopes of tbe fill, which we deem without merit. These are questions of law. Tbe purpose of tbe plaintiffs in this review proceeding seems to be to require tbe city council to so set out tbe facts involved in its reassessment, its reasons therefor, and its methods of arriving at conclusions, in order that they may try out tbe facts in the court on review. Section 401 of tbe charter is intended to determine tbe specific amount to be assessed against any particular property by appeal, where tbe facts may be presented to tbe jury. Tbe writ of review was intended to determine from tbe record whether tbe proceedings are regular and tbe method adopted tbe proper one, but it cannot review tbe facts or determine tbe result of a reassessment. Tbe determination by tbe council of tbe amount tbe property was specifically and peculiarly benefited by tbe improvement and tbe proportionate share of tbe cost to be charged to each lot, in tbe absence of fraud or demonstrable mistake of fact, is conclusive, except as a right of appeal may be given by tbe charter, or unless it has proceeded upon an erroneous principle of law: Hughes v. City of Portland, 53 Or. 385 (100 Pac. 942). Tbe amount of assessment of any lot is left to tbe judgment of tbe council, and when it has exercised its judgment its decision is final, except as above mentioned. Tbe principal objection raised by them is that tbe cost of tbe improvement charged to their properties is in excess of tbe benefits and in excess of their proportionate share thereof, and tbe council must determine these matters as issues of fact. It has determined that tbe lots mentioned in Section 1 of ordinance No. 20,989 are especially and peculiarly benefited by tbe improvement to tbe extent of their respective and proportionate shares thereof, and thus *446complies with- Section 400 of the charter and with the order of the Circuit Court, and that cannot be reviewed on this writ. The amount of the benefit is a matter of opinion, and the expression of that opinion in figures is all that is contemplated by the Hughes’ case, and the council can do no more. The further remedy of the plaintiffs is under Section 401 of the charter.
We think the plaintiffs had their case fully considered at the hearing by the original opinion. The petition is denied.
Affirmed. Rehearing Denied.
Mr. Justice Moore and Mr. Justice Ramsey concur. Mr. Justice Burnett dissenting.