feet owned by them respectively. Section 34 is in these words, viz.: "After the contract has been awarded as provided in section 32, the city commissioner shall impose a tax upon the owner or owners of property bounding on such street, lane or alley, or part thereof equal in amount to the whole expense of the work and for collecting the same, being three per centum of the whole cost, except for cross streets; and he shall assess and lay the tax upon the owner or owners of property on each side of said street, land or alley, or part thereof, of one-half of so much of said. street, lane or alley as may be in front of such property, except for paving the portion reserved for sidewalks, being one-fifth of the whole width on each side thereof; and the said tax shall be a lien upon such property.' After the work was completed under Ordinance No. 100, demand was made upon the appellant for the sum of $4,639.27 assessed upon her by the city commissioner for her proportion of the cost of the improvement. She thereupon applied to the Circuit Court for an injunction to restrain the collection of the tax. The court below refused an injunction and dismissed the bill. From that decree this appeal has been taken. Now it will be observed that neither the Act of 1874, chap. 218, nor Ordinance No. 100, of 1886, nor section 34 of article 47 of the City Code, makes the slightest provision for giving notice to the parties, who may be charged with the cost of paving North Avenue, that the work will be done or that they will be assessed therefor. No notice was given them that the ordinance would be passed, and no notice was given them that it had been passed, and no notice was given them that they had been adjudged to pay the whole cost of the improvement; and no opportunity was given them to contest any one of these steps in the proceeding. The entire proceeding, beginning with the Act of Assembly, followed by the ordinance and the imposition of a lien upon the property bounding on North Avenue and upon all other property owned by abutting proprietors, was, in the strictest sense of the term, purely ex parte. No opportunity was given to resist this exaction, either by allowing a hearing before the imposition of the tax or by providing for an appeal to a court of law afterward. The first process served upon the citizen was a peremptory demand for the payment of a burdensome lien—a judgment in rem and in personam-imposed by a

municipal corporation without summons or notice or warning, and without even an opportunity to appeal. If this be "due process of law" the provisions of the Federal and State Constitutions and of Magna Charta itself are utterly meaningless and vain.

The Act of 1874 does not of itself impose the tax for paving, grading and curbing North Avenue. It does not fix the amount of that tax nor the proportion thereof to be paid by the abutting owners, nor the standard by which that proportion is to be ascertained. No legislative rule was prescribed which should govern the apportionment of any assessment. It is true that from 1782 to 1860, by various Acts of Assembly, and in 1860 by sections 845 and 847 of article 4 of the Code of Public Local Laws, the front-foot rule was established by the Legislature; but by the repeal of those sections by the Act of 1874, chapter 218, this rule was abrogated, and no other rule or system of valuation was substituted therefor. The entire cost of the work, the distribution of that cost between the city and adjoining proprietors and the establishment of a system-whether by the frontfoot rule or by reference to the intrinsic value of each parcel of land bounding on the street, or by some other standard-whereby the proportion of each person liable to contribute may be fixed, are not prescribed by the Act of Assembly, but are left under it to the discretion of the Mayor and City Council of Baltimore. Can that direction be lawfully exercised by the municipality without notice to the individuals whose property rights are directly involved? In other words are those rights, under these conditions, protected by the provisions of the Federal and State Constitutions, which in substance declare that no man shall be deprived of his life, liberty or property without due process of law?

Due process of law is not confined to judicial proceedings. The article of the Constitution is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave the Legislature free to make any process due process of law by its mere will and pleasure. Murray v. Hoboken Land & Imp. Co., 59 U. S. 18 How. 272. There would seem to be no doubt that notice in all such cases as the present is required to constitute due process of law and is

essential to the validity of the assessment. Walston v. Nevin, 128 U. S. 578; Palmer v. McMahon, 133 U. S. 660.

But it has been suggested that the order appealed from should be affirmed because, even had opportunity been given to the appellant to appear and be heard before the tax was imposed, no different result could have been reached. To this we cannot agree. The constitutional guaranty belongs to the individual by right, and not by the mere favor of the Legislature or the sufferance of judicial tribunals. It is the duty of the courts to see that this right is not invaded under any pretext whatever when the subject is before them. Its value as a safeguard would speedily dwindle away, or, at least, become exceedingly precarious, if the privilege to assert it were made to depend upon the belief or the opinion of a judge that it would, if asserted, be available. It is a right of which a citizen cannot be deprived, and he may appeal to it whatever others may think as to the result of such an appeal. "It matters not upon the question of the constitutionality of such a law that the assessment has been fairly proportioned. The constitutional validity of a law is to be tested, not by what has been done under it, but by what may by its authority be done." Stuart v. Palmer, 74 N. Y. 183.

But we do not admit that had notice been given the appellant it would have been fruitless. It might well be that she could have shown that she had been improperly assessed, and that the rule of front-foot measurement, instead of an actual valuation, was as unjust and arbitrary as though adopted and applied for purposes of general taxation. That such a mode of valuation. would be tolerated for the latter purposes no one will seriously contend.

In further support of the conclusion which we have reached, we refer to the opinion delivered by Judge Irving in Scharf's Case (54 Md. 499), and to the dissenting opinion filed by Chief Justice Alvey in the Johns Hopkins Hospital Case.

It follows from our understanding of the case of Spencer v. Merchant (125 U. S. 345), that the decree of the Circuit Court must be reversed and the cause remanded that an injunction may issue, because the assessment levied upon the appellant's property is null and void; and it is null and void, because the ordinance made no provision for notice to and hearing of any proprietor, whose land adjoined North Avenue, upon the ques

tion what proportion of the tax should be assessed upon his land. Decree reversed, and cause remanded.

ROBINSON and BRYANT, JJ., dissent.*

* Due process of law simply requires that a person should be brought into court and have an opportunity to prove any fact for his protection. People v. Essex County, 70 N. Y. 229.

It does not necessarily import a trial by jury, but includes summary remedies. Martin v. Mott, 25 U. S. 12 Wheat. 19.

Depriving a person of his property without notice and without examination of witnesses is in contravention of the provision of the Constitution guaranteeing protection to property rights. Sullivan v. Oneida City, 61 Ill. 242.

Opportunity to be heard, when accorded by statute, is sufficient to constitute due process of law. Lent v. Tillson, 72 Cal. 404. And this is so though the notices provided for are not addressed to the persons whose property is affected by name, and although the property was not specifically described. Ibid.

GILMAN v. TUCKER.

New York Court of Appeals, 13 L. R. A. 304. 1891. Appeal by defendant from an order of the General Term of the Superior Court for the City of New York, affirming an order of the Special Term, which denied his motion for an order declaring the judgment obtained by the plaintiff to be of no force or effect because of plaintiff's failure to comply with the provisions of Code Civ. Proc. Sec. 1440. Affirmed.

The facts are stated in the opinion of the court.

RUGER, CH. J., delivered the opinion of the court:

This appeal involves the construction and constitutionality of section 1440 of the Code of Civil Procedure as amended by chapter 681 of the Laws of 1881, relating to the sale, redemption of real property sold on execution.

The questions arise upon the affirmance by the general term of an order of the special term denying the defendant's motion to set aside and vacate judgment entered herein for the plaintiff. No claim was made but that the judgment was regular and authorized by the evidence in the case, or that there was any statute or rule of law which required the court to set aside such

judgment. The purposes of the Act referred to, if valid, do not require an order of the court to render them effective. The contention is that the defendant is entitled to the relief asked for, because the plaintiff did not, within twenty days after the recovery of the judgment, make certain payments to the defendant, in default of which the section referred to declares the judgment to be of "no force or effect." Even if it be conceded that the provisions of the Code are valid, it does not follow that the defendant is entitled, as of course, to the relief demanded. It is not required by the language of the Statute, and the court might well have said, in the exercise of its discretion, that the defendant should be left to the remedies which the statute gave him, and that it would not determine the controversy in a summary way upon motion. But we are disinclined to dispose of the appeal on this point, as important questions are raised by the case, which, in the interests of justice, require an early disposition.

The evidence in the case shows that previous to the commencement of this action the defendant had, as a subsequent judgment creditor of the plaintiff, acquired the right to a deed from the sheriff, by the redemption from the purchaser, upon an execution sale, of a house and lot in New York belonging to the plaintiff, and she, believing the sale to have been unauthorized and illegal, brought this action to compel a determination of the defendant's claim under such redemption. In answer to the action the defendant set up title in himself through the proceedings to redeem from the former judgment creditor, who bid it in on an execution sale upon a judgment in his favor against the plaintiff. The question litigated upon the trial was as to the validity of the execution upon which such sale was had. The trial court found that it was "a void process, and that, therefore, the sale under that void process was also void and of no effect, and therefore the defendant Tucker could and did take no valid title by reason of his redemption from a sale which was void." Place v. Riley, 98 N. Y. 1.

Judgment was therefore rendered in favor of this plaintiff, with costs, and that judgment was affirmed, not only by the general term, but also by this court with costs. It is claimed that this judgment is ineffective, because the plaintiff did not within twenty days after its recovery, in compliance with section 1440,