
    ALLMAN v. THE DISTRICT OF COLUMBIA.
    Statutory Construction ; Special Improvement Taxes ; Notice.
    1. Statutes imposing special assessments for alley, street and sidewalk improvements upon adjacent property, are to be strictly construed.
    2. Where under an act of Congress providing for the improvement and repair of alleys and sidewalks in this city, a property owner applied to the Commissioners for the construction of a curb, gutter and sidewalk, and the Commissioners ordered the curb and gutter only, it cannot successfully be contended by them in certiorari proceedings by another abutting property owner to quash the assessment against his property for the curbing, that the curb was laid as part of the sidewalk; but the curb will be regarded as part of the gutter or street improvement, neither of which is within the terms of the act.
    3. A city lot may properly be said to abut the 'sidewalk in front of it’, although it may be separated from the sidewalk by a public parking.
    4. Under the appropriation act of Congress, of July 18, 1888, providing for the improvement and repair of alleys and sidewalks and construction of sewers in this District under the permit system, a property owner cannot compel an improvement to be made; and the Commissioners cannot force him to share in the cost of such an improvement, when made, without his request or acquiescence.
    5. When there is no special benefit to adjacent property by the making of special improvements, there can be no valid assessment levied against the property for such improvements. Such an assessment would not be a tax but a taking of private property for public use without compensation.
    6. In the levying of special improvement taxes against adjoining property, it is indispensable to the validity of such assessments that reasonable notice at some serviceable stage of the proceedings shall be given to the owners of such property.
    No. 204.
    Submitted February 8, 1894.
    Decided March 20, 1894.
    Hearing on a motion for judgment upon the return of a writ of certiorari to the Commissioners of the District of Columbia, in a case involving the validity of a special improvement tax upon certain real estate. The case was certified to be heard in the General Term of the Supreme Court of the District and was there pending upon the creation of this court, to which it was transferred by the act of Congress of February 9, 1893.
    
      Granted.
    
    The Court in its opinion stated the case as follows:
    This is a petition for certiorari by a taxpayer of the District of Columbia, James Allman, complaining of an illegal special tax or improvement assessment upon his property. Upon the coming in of the return to the writ, petitioner filed a motion for judgment thereon, which was certified to the General Term of the Supreme Court of the District of Columbia, to be there heard in the first instance. Depending therein when the act creating the Court of Appeals went into effect, it has been duly transferred to it in accordance with the provisions of said act.
    The following condensed statement is the record upon which the case has been argued and submitted:
    I. Petitioner owns lot A and east half of lot 4, square 231, Washington City. Each lot fronts on north line of C street south, between Fourteenth and Fifteenth streets west.
    II. The tax records of respondent bear illegal charges against said parcels: $132.43 against lot A, in name of James Allman; $22.07 against lot named “of 4” in name of Daniel Allman, each charge for cost of “curb and gutter.” The notice served does not state on what street work was done, or whether the whole or a part of cost is charged.
    III. That said charges are made under the “Permit Work” clause of Appropriation Act of July 18, 1888, for fiscal year ending June 30, 1889.
    IV. Illegalities shown by record:
    (a) Charges for “curb and gutter” not authorized in law.
    (b) Petitioner was not a “ property owner requesting said improvement.”
    
      (c) Said charges were made against the property of owners not requesting said improvements.
    (d) Petitioner’s property was not abutting upon the improvement.
    (e) Petitioner was not consulted about the improvement, or heard on its cost or the apportionment, and was not notified in time of the charges.
    (f) The description “ of 4 ” is insufficient
    V. Said charges are unpaid; respondent threatens to sell and convey the land, petitioner’s title is clouded, he is injured and has no appeal. He, therefore, prays for a writ of certiorari for the record relating to said charges, and that on inspection they may be quashed and cancelled.
    Respondent returns record in the five following exhibits:
    Exhibit 1.
    Petition of Mr. Samuel Norment for. curb, gutter and sidewalk on north side of C street, between Fourteenth and Fifteenth streets southwest, under the permit system.
    Exhibit 2.
    Office of the Commissioners of the
    District of Columbia,
    Washington, September 13, 1888.
    Ordered: That gutter and curb be laid on the north side C street, between 14th and 15th streets southwest, and sixty-eight feet north of C street, on the east side of 15th street west, under the provisions of the compulsory permit system.
    Official copy furnished the Engineer Department, D.C.
    By order,
    Wm. Tindall, Secretary.
    August 6, 1889. The superintendent of streets reports the work done.
    Exhibit 3.
    Special assessment prepared by special assessment clerk, approved by District Commissioners, November 11, 1889, for one-half cost of labor and materials, for curb and gutter on C street, in front of square 231.
    
      
    
    Exhibit 4.
    Return of service, November 19th, 1889, “ by leaving the bill with James Allman” — sworn to, etc. The bill is:
    "James Allman, lot No. A, square No. 231, fronting on C street 150 feet, is charged upon the books of this office for special improvements, as follows: For work done under act of Congress approved July 18, 1888, curb and gutter, 132 dollars, 43 cents.” (At foot of bill is a copy of the “ Permit Work ” clause of the act of Congress aforesaid.)
    Exhibit 5.
    Return of service, November 19th, 1889, “by leaving the bill with Daniel Allman.” $22.07, for “ lot No. of 4, square No. 231, fronting on C street east 25 feet” — In other respects similar to Exhibit 4.
    There is no act of Congress which provides a general system of procedure for the paving of streets and alleys and the construction of sidewalks and the assessment of charges therefor against the owners of property benefited thereby. The only statutory regulations are to be found in the annual appropriation bills in the shape of clauses following the items of appropriation for the work.
    It seems that a method of making such improvements, under the name of “ permit work,” had grown up and become a regular practice of the District authorities before the same was recognized in the appropriation acts. The phrase “permit work” was first used in the act of 1883, and occurs in each appropriation act enacted since then. In the report of the Commissioners (December, 1885, p. 170), it is thus defined: “The permit work, in which the District pays for the materials and the property owners for the labor.” The practice was this: Abutting property owners would petition for a specified improvement. If this came within, “current work” for which the appropriation was available, and appeared to be in the interest of the public also, a permit was issued, and materials were furnished by the District and the labor was done at the cost of the petitioner.
    The acts of 1885, 1886 and 1887 made considerable and increasing appropriations for materials to do this work, to be applied to the repair of alleys and sidewalks, when in the opinion of the Commissioners the same should be necessary for the public health, safety and comfort, and to assure the payment of the' labor cost it was made a lien on the “ abutting property,” to be enforced in the same manner as the collection of general taxes.
    The act of July 18, 1888, contained the following provision:
    “Permit work. For the improvement and repair of alleys and sidewalks [and the construction of sewers], under the permit [system], $90,000: [Provided, that the property owners requesting such improvements shall pay one-half of the total cost.] And provided further, that the Commissioners of the District of Columbia are authorized in their discretion to [order such of the above enumerated work as] in their opinion is necessary for the public health, safety or comfort, and to pay [the total cost of such work] from said appropriation [one-half of the cost of such work] to be charged against and become a lien upon the abutting property, and its collection to be enforced in the same manner as the collection of general taxes, and when so collected to be credited to said appropriation; [and the material purchased under this appropriation shall be bought after due advertisement therefor, as required by existing law.]”
    
      The words in brackets in the foregoing, indicate the changes made in the corresponding clause of the next preceding act.
    It was under this provision that the curb and gutter were constructed on C street and the proportional part of the cost of the same, based upon frontage, assessed against petitioner. There is on said street the usual reservation of a space called “parking,” between the lots and the sidewalk, which cannot be built upon by the lot owners.
    The following objections to the legality of the assessment were urged on the argument:
    (1) The charges for “curb and gutter” are not authorized by the law.
    (2) Petitioner was not a property owner requesting said improvement.
    (3) Petitioner’s property did not abut upon the improvement.
    (4) Petitioner had no notice of the proposed improvement, or of the assessment before it was made, and had no opportunity in fact or in law, to be heard on the cost of the work or its apportionment.
    
      Mr. William Bimey for the petitioner.
    
      Mr. S. T. Thomas, Attorney for the District of Columbia, and Mr. A. B. Duvall, Assistant Attorney, for the respondent.
    1. In the absence of constitutional inhibition, it is within legislative authority to provide for the payment of special local improvements by assessments upon the property benefited thereby; and this discretion, when exercised, is not subject to review by the courts. Welty on Assessments, Secs. 275, 368; King v. Portland, 2 Or., 160; Guild v. Chicago, 82 Ill., 477; Fagan v. Chicago, 84 Ill., 231. The weight of authority is overwhelmingly in favor of the right of the Legislature to determine what property shall be assessed and how the apportionment shall be made. Elliott on Roads, 393, and cases cited; Spencer v. Merchant, 125 U. S., 33S; Mobile v. Kimball, 102 U. S., 703. The doctrine as to the extent of such taxation is that assessments cannot. exceed the amount or value of benefits. All in excess of benefits would be the taking of private property for public use without due process of law. A benefit is property of value; it is intrinsically property, because it is a betterment of the land. To the extent that the improvement is a betterment, that is, a substantial and material addition to the land, the owner receives a thing of value, and for it he should be compelled to pay, unless there are valid and material reasons warranting his release from this duty. The courts ought not to seize upon unimportant matters to relieve him by declaring the proceedings utterly void, and it' will many times bring unjust results to strictly apply the rules which obtain in cases where title to the land itself is in issue. Elliott on Roads, 387.
    2. Where the question whether the improvements contemplated shall be made at the expense of the property to be benefited, or be paid for by general taxation, is delegated for determination to the discretion of municipal' authority, and this discretion has been exercised by directing the expense to be borne by the property benefited, no other formal finding than such action is necessary to establish the fact that the property to be assessed will be benefited to an amount equal to the expense of the contemplated improvement or to some portion thereof. In the absence of-fraud, a determination that certain property is benefited, is conclusive.
    It is not necessary, unless required by the statute, to state in a resolution or ordinance directing the improvement of a street, and providing for an assessment, that the improvement is necessary. Where the judgment of the common council of a municipal corporation that an improvement is necessary is involved in its order directing the improvement, the order, resolution or ordinance need not set forth the grounds upon which the council proceeds. The adoption of the order, resolution or ordinance is a sufficient declaration of the necessity for the improvement. Welty on Assessments, Sec. 309; Elliott on Roads, 385, and cases cited; Mayor, etc. v. Johns Hopkins Hospital, etc., 56 Md., 1.
    3. The acts are not “ arbitrary violations of the rights of property” within the meaning of Art. 5 of the Constitution of the United States. Judicial proceedings are not indispensable to “due process of law.” McMillen v. Anderson, 95 U. S., 41. Applied to the collection of taxes, “due process of law ” means “ any legal process which was originally founded in necessity, and which has been approved and acquiesced in by universal consent.” State v. Allen, 2 McCord, 56; Davidson v. New Orleans, 96 U. S., 107; Hagar v. Reclamation Dist., m U. S., 708.
    4. What notice should or could be given to the owner? The preliminary question of ordering the work is to be determined solely by the Commissioners; Congress expressly thus authorizes them under the second clause of the proviso in their discretion to order such of that work “ as in their opinion is necessary for the public health, safety and comfort.” Lent v. Kiernan, 20 Dist. Col., 211. What notice of that can avail the owner? Shall they notify him that they propose to exercise that discretion? For what purpose? In order that they may substitute his discretion for theirs? There is no difference between this case and the case of the legislature itself ordering an improvement: the owner is notified in the latter case by the ordinance, and in this case by the order directing the work. Shall the owner be notified of the apportionment of the cost before it is made? The statute explicitly notifies him that the cost “shall be charged against and become a lien upon the property abutting upon the line of such improvement, and shall be levied pro rata, according to the lineal frontage of each lot or part of lot abutting upon such improvement.” What other notice can the owner ask or receive than that provided for in Section 4 of the published “Terms and Regulations.” This notice states “the number of the square, the lot, or part of lot, or parcel of ground and lineal feet of frontage thereof upon the work so assessed, the name of the last reported owner thereof, the amount of the assessment charged against said property, and a copy of the section of the act of Congress relative to permit work and assessments therefor.”
    Notice is not necessary to the validity of the assessment. An ordinance imposing an assessment upon the owners of adjacent property for the repaving of a street already opened and condemned, is not rendered invalid by failing to make provision for notice of the proceedings under it to such property owners, and to give them an opportunity of being heard before the charges are fully established against them; the imposition of such assessment being an exercising of the taxing power, and not of the right of eminent domain. Mayor, etc. v. Johns Hopkins Hospital, supra; Welty, Sec. 322, note 3 and 4; Gilette v. Denver. (Justice Brewer, U. S. Circuit, Colorado), 4 West Coast Report, 208 ; Emery v. Reed, 3 West Coast Report, 195.
   Mr. Justice Shepard

delivered the opinion of the Court:

1. This case is one of four that were argued and submitted at the same time. In common, they involve, more or less, a consideration of what is due process of law with respect to the necessity of notice, and the requisite character and time thereof, as regards special assessments of this kind. Each, however, has some features peculiar to itself, growing- either out of the language of the clause of the appropriation act under which the work was done, or the special character of the improvement made, or the mode of assessment therefor. To make the opinion in this, the first of the cases, cover all, would probably lead to confusion. Hence, we will consider the special features of this case only; at the same time, however, we will, for the saving of time in the other cases, discuss the general questions which are'common in some degree to them all.

2. There has been great contrariety of opinion as regards the extent of the power reposed in the legislative authority and the discretion which it may exercise in the enactment of statutes imposing special assessments upon adjacent property, for the paving of streets and alleys and the construction of sidewalks in cities. To a consideration of some of the questions involved we shall recur later. There seems to be universal agreement, however, that when a valid act therefor shall have been passed, it must be construed with strictness and followed in every substantial particular by those charged with its execution. The act of 1888, under which this work was done, provided for the improvement and repair of alleys and sidewalks and the construction of sewers. It does not authorize the paving of streets or gutters. A gutter is a part of a street improvement, and might be included therein without especial mention; but it cannot be said to be embraced in the construction of a sidewalk, curbing is not, strictly speaking, a part of the sidewalk, though it may be considered an adjunct thereto and therefore included in it. Schenley v. Commonwealth 36 Pa. St., 40. Whether it is to be so considered, or as a part of the gutter, would largely depend upon the language of the act authorizing the improvement, the character and extent of the work to be done, and possibly upon the circumstances of the particular case. It is not necessary for us to decide, however, whether the act in question contemplated the putting in of curbing as a part of the sidewalk improvement. The petition of Norment, one of the owners of abutting property, asked for the construction of “ curb, gutter and sidewalk.” The Commissioners ordered the curb and gutter only. Hence, it cannot be contended the curb was laid as a part of the sidewalk. It must be regarded as a part of the gutter or street improvement, neither of which is within the terms of the law.

3. The objection that petitioner’s property did not abut on the sidewalk, the improvement of which was requested, is not well taken. The “parking” of some twenty feet in width intervening between the building and the sidewalk is a part of the scheme for street improvement adopted generally in the city of Washington. But whilst the maintenance of this space, free from building, is, in a measure, for the public convenience and benefit, it is not for the general use of the public, cannot be occupied or obstructed for such use, and is really a private easement of the adjoining owner. It can no more be said to prevent the lot from abutting (in the sense of the statute) on the sidewalk, than can the sidewalk be said to prevent it from abutting on the street proper. The soundness of the opinion in Johnson v. The District, 6 Mackey, 21, is not questioned; it has no application to this question.

4. It is contended on behalf of the petitioner that the appropriation in the act of 1888, is based exclusively upon the “ permit system ” in practice at that time. As we have seen in the statement of the case, this “permit system” grew up of itself, and was not originated by any statute. Under it, the custom was for the District to make the improvement, jrhen requested by the owners of abutting lots, furnishing the material free and charging them with the cost of the labor only. The appropriations for 1883-4-5-6 and 1887 cover only “materials for permit work,” in accordance with the prevailing system. The act of 1888 omits the words “materials for permit work,” and makes the appropriation generally “ for the improvement of alleys and sidewalks and the construction of sewers under the permit system.” It also provides that instead of the labor Cost as formerly, one-half the “ total cost ” of the improvement .shall be charged against the abutting property. Doubtless it was the intention of the District Commissioners that Congress should in this appropriation act, not only recognize and continue in force the old permit system, but also establish a new one, for they gave the section, as enacted, that interpretation, and under it instituted the “ compulsory permit system,” which is relied upon as affording a legal foundation for the assessment under consideration.

This interpretation is founded on the last proviso, which if taken alone tends somewhat to that conclusion. But the section must be considered as a whole in order to ascertain its meaning. Full effect must be given to the first proviso, which reads thus: “ Provided, that the property owners requesting such improvement shall pay one-half of the total cost.” More important still, is the omission to include in the last proviso or clause certain .provisions absolutely necessary to the valid inauguration of a compulsory system.

The first proviso would be meaningless, unless intended to give continued effect to the old permit system based upon the request of the lot owners, with a change merely in the manner of the apportionment of the expense of the improvement. It is true that the voluntary and the compulsory system of improvement may stand together without inconsistency, and operate jointly in the public interest; for then when property owners, by refusing to request, might stand in the way of an improvement demanded by the public health, convenience and comfort, the Commissioners could nevertheless undertake it and make them bear one-half the burden.

We would hesitate to hold that the double system was not authorized in the act, were it not, as we have before intimated, for the omission of certain requirements necessary to the validity of the provision, if to be considered as compulsory. No provision is made for notice to non-requesting lot owners at any stage of the proceedings. No rule is given by which the apportionment of the cost is to be made upon the abutting property. There is nothing to indicate whether the apportionment shall be in proportion to value, to benefits received, or to linear frontage. No notice, no opportunity to be heard is given to the owners. The absence of some, at least, of these necessary provisions, is utterly inconsistent with the idea of the establishment of a separate and compulsory system, dependent alone for its operation upon the discretion of the Commissioners. They would, however, be unnecessary under the old permit system, for where the work can only be done upon the request of the owners themselves, notice would be idle, and a hearing wholly unimportant and unnecessary. The improvement being upon the demand of the owner, the sole matter for the consideration of the Commissioners would be whether the work is also demanded in the interest of the public to such an extent as to justify them in ordering it done, one-half at the public expense.

In our opinion, the proper interpretation of the statute is, that the lot owner cannot compel the improvement to be made, and the public authorities cannot force it upon him.

In this case, one of the owners of abutting property petitioned the Commissioners to construct a curb, gutter and sidewalk ” along the street where petitioner’s property is situated. Petitioner did not join in the request, and it does not appear that he ever had knowledge of it even. In the exercise of their discretion, the Commissioners saw proper to construct the curb and gutter only. After the work was done, they apportioned the cost among the abutting owners in proportion to their linear frontage, and then notified petitioner to pay the amount assessed against him. Having neither joined in the request for the improvement, nor acquiesced therein in any such manner as would estop him from denying that it was done with his assent, upon Norment’s request, the petitioner cannot be lawfully charged with any portion of the cost.

5. If the statute under which this work was done could be regarded as inaugurating the compulsory system of sidewalk and alley improvements, it would not follow that this assessment is valid and enforceable. This brings us to the consideration of some of the principles of the system of special assessments for local improvements, now so universal in its operation, which forms so great a part of the taxation laid upon real estate in the cities of the Union. Unfortunately for public and private interests, Congress has never adopted a complete or permanent regulation of the system for the government of the District of Columbia, and to this date these very important matters have been provided for only in the yearly changing and indefinite provisions of the appropriation bills.

It is now quite generally conceded that these special assessments, though savoring in some measure of the exercise of the right of eminent domain, are nevertheless included in the sovereign power of taxation and governed generally by the principles thereof. The old controversy with respect to this must be considered as closed. Cooley on Taxation, 430-

There are two ways in which charges of this nature have been imposed. The first is by act of the legislature, which itself declares the character and extent of the improvement to be made, creates the taxing district, and directs the exact manner in which the assessment for the cost shall be laid and collected. The second, and most general, is by the creation of municipal corporations, local boards and the like, vested with discretionary powers as to some one or all of these matters. The right to impose the special burden is founded in the idea that, whilst the public health, comfort and convenience demand the improvements, their construction is, at the same time, of special and peculiar benefit to certain private property in the immediate vicinity. Upon this theory the power absolutely depends. Where there is not this special benefit there can be no valid assessment. The legislature itself, though vested with the widest discretion, cannot create this special benefit by the mere declaration that it exists.

The special benefit to the property assessed being the limit of discretion, it follows that when this is clearly exceeded, the assessment ceases to be a tax and becomes a taking of the private property for public use without compensation. Tidewater Co. v. Coster, 18 N. J. Eq., 518; State v. Newark, 37 N. J. L., 45 ; Thomas v. Gain, 35 Mich., 155 ; Stuart v. Palmer, 74 N. Y., 183 ; Washington Ave., 69 Pa. St., 352 ; Hammett v. Philadelphia, 65 Pa. St., 146 ; Seely v. City of Pittsburgh, 82 Pa. St., 360 ; Louisville v. Rolling Mill Co., 3 Bush, 416 ; City of Lexington v. McQuillan, 9 Dana (Ky.), 513 ; Crawford v. People, 82 Ill., 557; Gilmore v. Hentig, 33 Kan., 156 ; Barnes v. Dyer, 56 Vt., 469; Dyar v. Farrington, 70 Me., 515 ; 1 Hare Const. Law, 313-315 ; Cooley on Taxation, 460 ; 2 Dillon on Mun. Corp. (4th Ed.), Sec. 761, p. 933.

Where the legislature has declared the improvement to be made, defined the territory to be specially benefited thereby, and regulated the manner in which the cost of the work is to be assessed thereon, courts have sometimes gone to the extent of saying that these declarations, like the necessity for and the imposition of general taxes, are matters entirely within the discretion of the legislature, and therefore beyond the scope of judicial inquiry and action. This doctrine, though doubtless sound in application to the facts of particular cases in which it may have been announced, must be taken with the qualification above stated. Undoubtedly there exists no power in the judiciary to review the action of the legislature in matters entirely within its discretion. With the wisdom or expediency of either general or special taxation the judiciary have nothing whatever to do. But where it becomes manifest that the legislature has exceeded the just and plain limits of its discretion and invaded private right, it is not only within the power of the judiciary, but it becomes their solemn duty also, to make the necessary inquiry and right the wrong. Laws which cast the burdens of the public on'a few individuals, no matter what the pretense, nor how seeming their analogy to constitutional enactments, are in their essence despotic and tyrannical, and it becomes the judiciary to stand firmly by the fundamental law in defense of those general, great and essential principles of liberty and free government, for the establishment and perpetuation of which the Constitution itself was ordained.” Washington Avenue, 69 Pa. St., 352.

“Due process of law is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty or property, whether the proceeding be judicial, administrative or executive in its character.” Stuart v. Palmer, 74 N. Y., 191 ; Murray's Lessee v. Hoboken, L. & I. Co., 18 How., 272 ; Weimer v. Bunbury, 30 Mich., 201.

The judiciary, having no right to take upon themselves the correction of legislative mistakes or errors of judgment, cannot, upon the excuse that perfect justice and equality do not obtain in the provided mode of apportionment of the cost of an improvement, interfere to thwart the purpose of the enactment. It is only of a plain, demonstrable invasion of private rights that they will take cognizance. “All that is required in such cases,” said Field, J., “ is that the charges shall be imposed in some just and reasonable mode according to the benefits received. Absolute equality in imposing them may not be reached; only an approximation to it may be attainable. If no direct and invidious discrimination in favor of certain persons to the prejudice of others be made, it is not a valid objection to- the mode pursued that, to some extent, inequalities may arise.” Hagar v. Reclamation Dist., 111 U. S., 705.

The only limitation in the act. under consideration is that the assessment for one-half the cost shall be laid upon the “abutting property.” This plan, with the addition that it . shall 'be according to linear frontage, though sometimes very unfair in its operation, has very generally been held to be within the limits of the legislative discretion. The manner in which the apportionment, under this act, is to be made between the abutting lots, is left to the discretion of the Commissioners, and it is with the exercise thereof by them, and not by Congress, that we have here to deal.

The fatal defect in the act, and in the proceedings thereunder, is the failure to provide for notice to the owners of property, and an opportunity to them to be heard, at least, before the final settlement of the charge, and lien therefor, upon their property. A proceeding which fastens a charge upon property, for which it may be summarily sold, without notice and an opportunity given the owner to be heard as regards its validity and fairness, is not “ due process of law.” Stuart v. Palmer, 74 N. Y., 183 ; Thomas v. Gain, 35 Mich., 155 ; Ullman v. Mayor, etc., of Baltimore, 72 Md., 587 (overruling Mayor, &c., v. Johns Hopkins Hospital, 56 Md., 1, and re-establishing the doctrine of Baltimore v. Scharff, 54 Md., 499); Gatch v. City of Des Moines, 63 Iowa, 718 ; Griswold College v. City of Davenport, 65 Iowa, 633; Boorman v. Santa Barbara, 65 Cal., 313; Gilmore v. Hentig, 33 Kan., 156; San Mateo Co. v. R. R. Co., 13 Fed. Rep., 722.

“The Legislature can no more arbitrarily impose an assessment for which property may be taken and sold, than it can render a judgment against a person without a hearing. It is a rule founded on the first principles of natural justice older than written constitutions, that a citizen shall not be deprived of his life, liberty or property without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these ‘ without due process of law/ has its foundation in this rule.” Stuart v. Palmer, 74 N. Y., 190.

Whilst there is a difference of opinion with respect to the stage of the proceedings at which the notice must be given, the mode and form of giving it, and the purpose thereof, there is general concurrence in the view that reasonable notice at some serviceable stage of the proceedings is absolutely necessary to the validity of the assessment. This is maintained in the Supreme Court in an unbroken line of decisions. Davidson v. New Orleans, 96 U. S., 97 ; Hagar v. Reclamation Dist., 111 U. S., 701 ; Spencer v. Merchant, 125 U. S., 345 ; Walston v. Nevins, 128 U. S., 578 ; Palmer v. McMahon, 133 U. S., 660; Lent v. Tillson, 140 U. S., 316; Paulsen v. Portland, 149 U. S., 30.

Many well argued cases hold that this notice must be provided for in the act which confers the power, and that its omission therein cannot be compensated by the fact that the council, board or committee chargéd with the execution of the law may of their own motion provide for notice in the regulations or proceedings which they may prescribe. Stu art v. Palmer, 74 N. Y., 188 ; Kurtz v. Sumption, 117 Ind., 1 ; Ullman v. Mayor, etc., Baltimore, 72 Md., 587.

In the latest decision of the Supreme Court, however, it has been said: “We do not think it essential to the validity of a section in the charter of a city granting power to construct sewers, that there should be in terms expressed either the necessity for or the time or manner of notice. The city is a miniature State, the council is its Legislature, tKe charter is its constitution; and it is enough, 'if in that, the power is granted in general terms, for when granted, it must necessarily be subject to all limitations imposed by constitutional provisions, and the power to prescribe the mode of its exercise is, except as restricted, subject to the legislative discretion of the council.” Paulsen v. Portland, 149 U. S., 38 ; see also Gilmore v. Hentig, 33 Kan., 156.

In accordance with the doctrine of the foregoing case, it •would seem that when Congress shall confer the power upon the Commissioners of the District to make improvements without the request or consent of the owners of abutting property, and assess a part of the cost against them, the act itself need not expressly require notice, provided full discretion is left to the Commissioners in the premises and in accordance therewith they make public and permanent regulations which shall prescribe a fair, reasonable and uniform mode of giving notice to all parties whose property may be affected.

The right to notice and a hearing thereafter was all the more necessary in this proceeding because, as we have seen, the manner of the apportionment of the cost between the owners of the abutting property was left entirely to the discretion of the Commissioners, who, in the exercise thereof, assessed the cost on the basis of linear frontage. This may have been the fairest and most nearly correct form of assessment, but the parties at interest should nevertheless have had a hearing thereon, and the opportunity to show that it was not. “ The imposition of taxes is in its nature administrative and not judicial; but as assessors exercise quasi-judicial powers in arriving at the value, an opportunity to be heard should be and is given under all just systems of taxation according to value.” Palmer v. McMahon, 133 U. S., 669; Hagar v. Reclamation Dist., 111 U. S., 710; Philadelphia v. Scott, 81 Pa. St., 90; 1 Hare Const. Law, 313.

What has been said herein with respect to notice and hearing as essential requisites to'the validity of a tax must be understood as applying to the character of the tax involved in this case, and to no other.

The cause must be remanded to the Supreme Court of the District of Columbia, with, direction to enter a judgment granting the prayer and motion of the petitioner, in accordance with this opinion ; and it is so ordered.  