immediately upon the conclusion of the argument, stated that he considered that the case was so entirely free from doubt that it would be unnecessary to hold it under advisement. He considered that the question of constitutional law involved was determined for this Court by the decision of the Supreme Court in English vs. The Mayor and Council of Wilmmgton, 2 Marvel 63.
*455In the opinion of the Court in that case, which was delivered by the Chancellor, it was held that whenever, in the exercise of the right of eminent domain, there is provision for “an assessment made by assessors or commissioners, appointed for the purpose under legislative authority, and who are to view the estates, and levy the expense in proportion to the benefits which, in their opinion, the estates, respectively, will receive from the work proposed, it is now unquestioned and unquestionable that an opportunity for a hearing is absolutely necessary to the validity of the assessment.”
The reasoning of that case, in which the decisions of the United States Supreme Court were examined, made it clear that the complainants in this case were protected, by the Fourteenth Amendment of the Constitution of the United States, from the taking of their property for public use, without notice and an opportunity for a hearing upon the question of the damage to be suffered by them, for which they were entitled to compensation,—in other words, since the adoption of the Fourteenth Amendment, the property owner, in such a case as this, was entitled to have his “day in court.”
Applying this doctrine to the present case, he was of opinion that the Act of Assembly, under which the Levy Court and the respondent had proceeded, was unconstitutional and void, and that the respondent, must be restrained by injunction from proceeding under it.
The legislative practice so earnestly urged by counsel for the respondent, originated under our State Constitution which has no provision construed -to require notice and a hearing, and doubtless most of the acts referred to were passed prior to the adoption of the Fourteenth Amendment.
As to the effect of constitutional provisions in force before that amendment The Chancellor referred to his opinion in Diamond State Iron Co. vs. Husbands, ante p. 205 remarking that the Fifth Amendment of the Constitution of the United States had the effect of prohibiting only the Congress from passing any law which would deprive any person of life, liberty or property, without due process of *456law, but the Fourteenth Amendment, the ratification of which was announced July 25, 1868, prohibited the several States from so doing. It was this provision which was discussed in the case of English vs. Wilmington, supra.
It was also observed that if any of the acts of Assembly cited by counsel, were passed since the date of the Fourteenth Amendment of the Federal Constitution, they must, if brought to the test of judicial decision, be held unconstitutional equally with that now under consideration, in accordance with the decisions of the Supreme Court of the United States respecting the meaning of the phrase “due process of law.”
Accordingly, on March 10, 1900, a decree was entered making the injunction theretofore issued, perpetual; the respondent to pay the costs.