By the Court,
Bauculo, J.The first question to be examined is, whether the sale, made by the common council of the city of Hudson, of the premises in question, to Israel Platt was valid. It is contended that the assessment under which the sale was made was illegal and unconstitutional; that it was in violation of that provision of the constitution which declares that no person shall be deprived of property without due process of law. (Const. art. 7, § 7.) It is conceded that the assessment was made without any notice to the owners; and for the purpose of raising money to pay for land taken and appropriated by the common council for a public square. The city charter authorizes the common council to take lands for such purpose. “ And in order to provide for the payment thereof, the common council shall cause the same to be assessed upon the owners or occupants of lots intended to be benefited by such improvement, and collected in the same manner in which estimates and assessments are directed to he made and collected in and by the preceding sections of this act.” (§ 30.) The 28th section provides for the making estimates and assessments by five disinterested freeholders, appointed by the common council; but there is nothing in the act requiring any notice to be given to the owners of land assessed for benefits.
*281It seems to be the better opinion that the clause of the constitution which prohibits the taking of property without due process of law, refers to a transfer of property from one person to another; and not to the taking of private property for 'public use. It means that the legislature shall not have the power to take the property of one person and- give it to another, by mere enactment; but that to effect such a change, there must be a suit or proceeding in some court, or before some magistrate, and a judgment thereon according to dúe course of law. (In the matter of John and Cherry streets, 19 Wend. 659. Taylor v. Porter, 4 Hill, 140.)
In the present case the property was not taken for private use. The assessment was made to pay for the public square; and if it falls within the section of the constitution referred to, at ail, it must be the last clause, which declares that private property shall not be taken for public use without just compensation. In regard to the owner of the land taken for the square, this clause is clearly applicable; and it cannot be pretended that the common council had a right to take his land without making just compensation. Bqt it is said that there is a distinction between taking the land for public use, and taking money to pay for the land ; and that the latter is a mere exercise of the taxing power. Such is the reasoning of Justice Beardsley in Striker v. Kelly, (7 Hill, 24,) and of the chancellor in Livingston v. The Mayor, &c. of New- York, (8 Wend. 101, 2,) and of Chief Justice Savage in Owners of ground, &c. v. The Mayor, &c. of Albany, (15 Id. 374.) I must, however, confess that this reasoning has never been satisfactory to my mind. I am unable to perceive why it is not as much faking property, to take $500 from a man in money, as to take the same value in land; and why it is not as much devoting it to public use, to apply the money in payment for land, as to use the land itself for public purposes. It seems to me that it would be better to say that in both cases the property is taken for public use. In the one case, the just compensation is made by payment of the value of the land; and in the other, by benefits equal in value to the amount of money taken, A *282similar view of this subject was taken by Justice Nelson in The Canal Bank of Albany v. Mayor, &c. of Albany, (9 Wend. 251,) where he says: “ It is somewhat remarkable that the law should have been so careful in securing the rights of the parties whose lands are taken for public purposes, and providing a full compensation therefor, and, at the same time, so utterly neglectful of the rights of those whose lands are assessed to pay such compensation. It is obvious that the amount of private property appropriated to public purposes is just as great in one instance as in the other. The rights of one class of individuals are secured by the award of damages equal to the value of the lands taken; those of the other, by the assessment upon their lands to the amount not exceeding the benefit.” It is proper to remark that an adjudication upon the distinct point was not necessary to the decision of any of the cases above cited; and the question may therefore fairly be considered open.
It is certainly somewhat difficult to draw the dividing line, between that taking of private property for public use which falls within the legitimate exercise of the taxing power, and that which requires a just compensation, within the meaning of the constitution. It may perhaps be doubted whether any such distinction exists. Why may not the ordinary tax payer be said to receive a just compensation in the security and protection which the state throws around him? He pays taxes to defray the expenses of government; of the administration of the laws; for the purposes of education; for the repairing and construction of roads and bridges. Why may not he be said to be justly compensated, by sharing in the benefit of these measures ? I see no greater impropriety in this, than in allowing land to be taken for public use and making a just compensation, by estimating the benefits which are to result to the owner’s remaining property, as was done in the case of Livingston v. The Mayor, &c. of New- York, by the court of errors.
Whatever view may be taken of this branch of the subject, it seems to me, that the assessment in this case must be deemed invalid, because no notice was given to the owners of *283the land assessed. They had no opportunity whatever of being heard. They were assessed a large, sum by an ex parte proceeding. This is contrary to every principle of justice and judicial proceedings. If this is to be deemed a taking of private property for public use, the case of the Owners of ground, &c. v. The Mayor, &c. of Albany, is an authority showing that notice must be given. If this mode of assessment is to be considered nothing more than a liberal exercise of the taxing power, notice should be given. For even in the ordinary case of taxation for town and county expenses, notice is required to be given, and every tax payer has the right to reduce his tax by his own affidavit, or other proof. He has an opportunity of being heard, before his property is taken. (1 R. S. 392, §§ 15, 19, 20, 21, 22, 23.) My conclusion, therefore, is, that the assessment was illegal, and not binding upon the owners, by reason of its being made without notice. The sale also was improperly made. The charter authorizes a sale of the lot for a term of years. The common council sold an undivided half of the lot. This was not pursuing their authority strictly, as required by the adjudged cases. There are obvious reasons why the sale of an undivided, share of premises for a term of years might be highly prejudicial to the owner.
For these reasons the plaintiff cannot rely on the title set up under the corporation sale.
The submission to arbitrators was clearly a discontinuance of the suit commenced by Amelia Hyatt, in 1842. (Smith v. Barse, 2 Hill, 387. Towns v. Wilcox, 12 Wend. 503.) That suit therefore cannot be set up as a bar to the present suit.
The remaining inquiry is, as to the validity of the award made by the arbitrators on the 16th of April, 1842. It does not appear that the award was ever sanctioned or acted on by the parties. It seems to have b.een made without any appointment of a time or place for a hearing, without any notice to the parties ; and without their being present, or having an opportunity of being heard, before the arbitrators. An award made under such circumstances is void. It is in the nature of a judgment of an inferior court which has not obtained jurisdiction of the *284parties. It is not necessary to show fraud or corruption, in such a case, to set aside an award. The arbitrators are bound to give the parties an opportunity of being heard in relation to the matters submitted; and without this, they have no authority to decide the question in controversy. This rule is applicable as well to submissions at common law as to those under the statute. It is nothing more nor less than the application of the plain principle of justice, running through all judicial proceedings, that a party is never to be condemned unheard. (Elmendorf v. Harris, 23 Wend. 628, and cases there cited.)
The plaintiff’s claim is then left to stand upon the title derived through the assignment of Smith to Little, and his conveyance to the plaintiff; by which the latter became the owner of the undivided half part of the premises in question, as tenant in common with Amelia Hyatt, the defendant.
There must therefore be a reference to ascertain whether the premises can be divided, &c. unless the parties agree that a partition can be made; in which case a commission must issue for that purpose.