#### Hardy, Respondent, vs. City of Waukesha, Appellant.

*April 11*—

May 2, *1911.*

*Municipal corporations: Street improvements: Special assessments: Amount chargeable to abutting lots.*

It is the “expense” of the work which, by sec. 925 — 175, Stats. (1898), may be assessed against real estate benefited by a street improvement; and if the estimate on which the assessment is based is greater than the cost proves to be, the “amount chargeable” to each parcel of land is not the full amount of the assessment, but the proper proportion of such actual cost.

Appeal from a judgment of the circuit court for Wauke-sha county: MartiN L. Lueck, Circuit Judge.

*Affirmed.*

This is an agreed case submitted to the circuit court for Waukesha county under the provisions of sec. 2788, Stats. (1898). The material facts are that the city of *Wa/ulcesha*proceeded under sec. 175 of the general city charter law (sec. 925 — 175, Stats. 1898) to improve one of its streets called North street. By proper proceedings the city estimated the total cost of the improvement at the sum of $10,162.45, assessed benefits upon adjoining property to the amount of $8,365, and decided that the amount properly chargeable to the city on account of street intersections, etc., was $2,264.25. The contract was finally let for $9,884.62, leaving but $7,620.37 to be paid thereon in special assessment certificates, if the city should pay the whole amount determined to be chargeable to it. The work has been completed and the city has already issued to the contractor special as-, sessment certificates for the full amount of the benefits assessed, and by this means proposes to reduce the amount to be paid by the city itself from $2,264.25 to $1,519.62. The plaintiff owns a lot fronting on the improvement which was assessed benefits amounting to $335. The actual cost of making the improvement in front of plaintiff’s lot, «provided the *278city pays tbe full amount made chargeable to it and tbe balance of tbe contract price be apportioned ratably among tbe assessed parcels, is $302.10. Thus the certificate issued against tbe plaintiff’s property exceeds by $32.90 tbe amount of the actual cost of *the*improvement in front of bis property.

Tbe questions submitted are thus stated in tbe submission:

“(a) Can tbe city of *Waukesha*under this agreed statement of facts lawfully issue sucb certificates and bonds as are contemplated by and under sec. 925 — 188 and sec. 925 — 192 of tbe Revised Statutes of Wisconsin, for a sum which exceeds tbe actual expense or cost of tbe construction of tbe improvement in question ?

“(b) Can tbe defendant city issue sucb certificates or bonds, for a sum equal to tbe amount assessed as benefits to said property abutting on North street, even if sucb assessment *of*benefits be in excess of tbe actual cost of construction of tbe improvement in question ?”

Tbe circuit court answered both questions in tbe negative,, and, it appearing that tbe plaintiff bad deposited in court tbe sum of $302.10 for tbe benefit of tbe city, judgment was entered that tbe defendant city pay tbe clerk’s fees and thereupon that tbe deposit be turned over to tbe city, and that the city redeem and cancel tbe ■ special assessment certificate against plaintiff’s lot. Judgment was further entered that the city be enjoined from issuing any improvement bonds under sec. 925 — 192, Stats. (1898), exceeding tbe actual cost of tbe improvement. Erom this judgment tbe city appeals.

*E. D. Walsh,*for tbe appellant.

Eor tbe respondent there was a brief by *Ryan, Merton,. Newbury & Jacobson,*and oral argument by *E. Merton.*

WiNsnow, C. J.

It seems plain to us that tbe trial court decided this case rightly. Tbe law does not contemplate that property owners shall pay anything exceeding tbe expense of tbe improvement, nor that tbe city shall make money out of tbe assessments. It is tbe “expense” of tbe work which by *279see. 925 — -175, Stats. (1898), may be assessed .against real estate benefited by tbe improvement. True, tbe assessment is to be made in advance of tbe performance of tbe work and must be based on an estimate of cost. Hence, if tbe estimate be greater tban tbe cost proves to be, bssessments will exceed tbe cost, as in tbe present case. No specific provision exists in tbe law directing a ratable reduction of tbe assessments when tbe certificates for tbe work are issued, but doubtless that was deemed a self-evident proposition. It is provided in sec. 925 — 188 that when the work has been done and properly approved tbe contractor shall be entitled to a certificate “as to each parcel of land against which benefits shall have been assessed for tbe *amount chargeable*theretoHad tbe purpose been to require tbe issuance of a certificate for tbe full amount of tbe assessment, this language would hardly have been used. It seems to us a plain recognition of tbe idea that tbe “amount chargeable” is not necessarily tbe amount of tbe assessment but tbe amount of tbe cost (within tbe limits of tbe assessment, of course), which is not ascertained till tbe work has been completed, and is then determined by simple computation, by which tbe gross cost, after deducting tbe city’s share, is apportioned among tbe property owners against whom benefits have been assessed in the proportion which tbe net benefits assessed against each owner bear to tbe gross amount of tbe benefits assessed. ' This, we think, is tbe construction which has been given to tbe law by city officers with practical uniformity since its enactment.

*By the Court.*— Judgment affirmed.