dissented, and the former filed the following opinion:
By the opinion of a bare majority of the Court in this case, the opinion of the majority in the case of the Gity of Baltimore vs. Scharf and others, 54 Md., 499, has been overruled. I concurred in the opinion of the Court in Scharf's Case, and can perceive no sufficient reason whatever why it should have been overruled or receded from by the Court. I must therefore dissent from the opinion of the majority of the Court filed in this case.
In that opinion there are three propositions asserted and made the basis of the judgment, which, in my opinion, with all due respect to the opinions of others,' cannot be supported in reason or by authority. These propositions are—
1st. That the question, whether the property along the-line of improvement is really benefited, is left exclusively to the judgment of the Mayor and City Council, and that their determination is final and conclusive, whether founded in fact or otherwise ; and that the property owners have no right to question, nor the Courts power to inquire into *38the facts of the case, and to relieve against any injustice of the special assessments, though they may be made when, in point of fact, no benefits will he conferred whatever.
2nd. That becáuse the special assessments upon the property of the complainants were made under the taxing power, as distinguished from the power of eminent domain, therefore no notice of any kind was required to he given to the parties of such assessments; and that it is not essential that the property owners should have an opportunity to he heard, either as to the propriety of the proposed improvement, the manner of its execution, or of the special assessments and collection thereof.
3rd. That the front foot rule of assessment or apportionment of the cost of the improvement, notwithstanding the repeal of those provisions of the law which expressly authorized it, still subsists, and that it was properly applied in this case.
I shall state briefly the reasons of my dissent from each of these propositions.
1. If it be true that the Ordinance, under which the present assessments were made, should .he taken as a final judgment, and so preclude all inquiry into the facts upon which it is supposed to be founded, there can he no good reason why all Ordinances of municipal corporations, dependent upon facts for their support, should not be equally conclusive. Whether a particular state of case actually exists, and whether that state of case constitutes a nuisance, or something else falling within the scope of municipal authority, in all such cases the Ordinances passed in reference to them must he taken as conclusive of the facts that would justify their adoption. The real state of facts becomes quite immaterial, and the Ordinance is the only thing that can he appealed to to determine the question of fact, and that must he by conclusive presumption if the Ordinance happen to he silent upon the sub*39ject. I must confess that I have not so understood the legal import of mere municipal Ordinances, when passed to affect the private rights of property of the citizen. All municipal authority is derived by delegation only, and the municipal agents must act within the limits of that authority ; and whenever the authority is transcended or •abused, or exercised in an unreasonable and therefore an unauthorized manner, the citizen has his remedy for relief •against the unwarranted action of the municipality or its agents. This proposition would seem to have the support of all authority entitled to respect.
In the case of Burns vs. City of Baltimore, 48 Md., 198, this Court declared Ordinance No. 79, of 1874, passed under the Act of 1874, ch. 218, for regrading, repaving, &c., ■ of Light street, utterly void, so far as it provided for special assessments, merely because it recited in the preamble that public convenience required the street to he improved. This was certainly going very far in the way of protection of private right as against the action ■of the city authorities ; for I suppose there is no case of paving or repaving of the public streets of a’ city that it is not done primarily and principally with a view to the public convenience, — certainly never with a view to mere private benefit. Indeed, there would he no authority at ■all for making the improvement except for public purposes. The declaration in the preamble did not say that it was for the public convenience alone, that the improvement was authorized to he made. A fair presumption, perhaps, in that case, could have been indulged, that while the public convenience was the primary and leading motive to the passage of the Ordinance, yet, such private benefits and advantages would accrue to the abutting property, as to justify the special assessments attempted to he made. But this Court held, and I am far from saying it did not rightly hold, that the Ordinance was void as to the special assessments, because it was supposed to *40be of doubtful construction, and, in such case, the presumption should be in favor of the right of the citizen. I am, however, clear in saying, that if the same indulgent construction had been extended to that Ordinance that has been extended to the one involved in this case, there-could have heen no difficulty in supporting the special' assessments, which were there declared void. A strong-presumption in favor of the rightfulness of the action of" the Mayor and Oity Council would certainly have saved the Ordinance in that case.
It is supposed that the cases of the City of Baltimore vs. Johnson & Moore, 6 H. & J., 375, The City vs. Howard,. Ib. 386, and The City vs. Hughes, 1 G. & J., 480, afford warrant for the conclusive effect attributed to the Ordinance in this case. But I do not so read those cases. Doubtless, Ordinances should be supported by all fairintendment, and they are certainly prima facie evidence of the facts upon which they profess to be founded. But in the cases referred to the question was not the same as that presented in this case. In those cases, the question was, whether there was authority given to the corporation to tax particular parts or districts of the city for-paving streets, in the absence of affirmative proof that, such pavement was specially beneficial to -that particular-part or district of the city in which it was made. The-improvements in those cases were required and made for public use and convenience, and the question was whether the city at large or the particular districts or parts of the-city in which the streets were located, should bear the tax. It was not a question of special benefits to abutting- property. The Court held, and it was all that was decided bearing upon this particular question, that the corporation could not tax any particular part or district of the city for paving, unless such paving appeared to be for the-benefit of that particular part or district. But that, in any Ordinance directing a street to be paved, and impos*41ing a tax on the district for that purposes, it was not necessary to he stated in the Ordinance that it was for the benefit of such district; hut that it would he so taken,, if nothing appeared to the contrary. And the Court further held, that the paving of streets is prima facie for the benefit of the parts or districts of the city through which they pass, and more especially when applied for by a majority of the immediate inhabitants.
That a municipal Ordinance affecting a private right of property cannot, in its nature, be so conclusive as to preclude all inquiry into the facts upon which it professes; to be founded, would seem to be well established by express decision of this Court. In the case of Glenn vs. City of Baltimore, 5 G. & J., 424, in passing upon the-question as to how far an Ordinance in respect to a particular erection, supposed to be a nuisance, was to be taken as establishing the fact, the Court held, that, while all-fair intendment should be made in favor of the validity of the Ordinance, yet it was liable to be questioned on proof. They said: “It is true the corporation have power to pass all laws which are necessary or proper to-carry into effect any given power, and the degree of its necessity or propriety would not be minutely or critically scrutinized; but the Court ought to see that it may be the means of accomplishing the object of the grant. The degree of necessity would indeed be properly, perhaps,, the subject for the judgment of the corporation, but that it contributes in any degree, would be for the determination of the Court.” And in the case of Alexander & Wilson vs. City of Baltimore, 5 Gill, 383, 398, involving the same principle, and nearly the identical question that is presented in this case, by the reasoning, and whole tenor of the opinion of the Court, it was conceded that if the proper averments had been made in the bill, the question as to the fact of special benefits would have been open to the plaintiffs on the proof; and that, too, in a case-*42where the judgment of the Mayor and City Council had been passed, as to the right of exemption of a certain locality from the special assessments. Indeed, upon no •other principle would there be proper protection of private property within the limits of municipal corporations.
The principles and right of these special assessments are just in themselves when properly applied. It is only, however, when the property assessed receives from the improvement benefits in addition to those received by the community at large, that the principle can properly apply. This, says Judge Dillon, as the result of all the author-ties, is the true and only solid foundation upon which local assessments can rest. (2 Mun. Oorp., 3rd Ed., sec. 761.) And this is the precise ground upon which it is said by this Court that they can be supported, and none other. Alexander & Wilson vs. Baltimore, supra. The same principle is fully affirmed in Burns’ Case, 48 Md., 208. The special benefit, therefore, is the essential condition of the assessment. Without it, there is no power to make the assessment; and any attempt to enforce an assessment where there is no special benefit conferred is a wrong, and, if consummated, is nothing more nor less than the confiscation of private property for public use, without compensation.
Now, it is quite certain, I suppose, that it was not designed by the Act of 1874, ch. 218, to confer upon the •city an arbitrary power to pass Ordinances requiring the whole or any part of the cost of the improvement of the ■streets, to be assessed upon the property binding thereon, without respect to any special benefit to such property. If such was the design of the Act, I should have no hesitation in declaring it void, as transcending legislative power. That such was not the design of the Act, however, I suppose to have been decided by the case of Burns, to which I have referred. Special benefits then must be in the contemplation of the Ordinance to make it valid, so *43far as the special assessments are authorized ; and the question then is, whether any such special benefits are to accrue, or whether it be merely an assumption without any foundation whatever in fact. The complainants deny that there will be any special benefits to their property whatever, and allege that the improvement is solely and exclusively for the common benefit of the public generally; and thus bring their application within the principle applied in Burns’ Case, If, then, the principle, as a limitation upon legislative or municipal power, be worth anything, or has anything of substance in it, as a shield or protection against the invasion of the rights of private property, why not allow these complainants the benefit of it, notwithstanding the mere form of the Ordinance? To refuse their application upon such ground, would seem to be sacrificing that which is valuable and sacred to the merest form — not to say device that may, upon any occasion, be resorted to to make presumable justification for an Ordinance, when it would have none in fact.
In the kindred and closely analagous case of taking private property for public use, by authority of the State, the opinion of the legislatj*i^ or of the municipal corporation entrusted with the exercise of the power, is never conclusive upon the question, whether the use be public for which the property is sought to be taken. The Legislature cannot make the use public by simply declaring it so; and while the necessity or expediency of the exercise of the power in all cases rests with the Legislature, either mediately or immediately, the question whether the particular use be of such public nature as will justify the exercise of the power, is purely a judicial one; and no terms can be employed in a statute or an ■Ordinance sufficiently strong to conclude the question, or to exclude the Courts. No proposition is better established than this, and it has been expressly affirmed by this Court. N. C. Coal Co. vs. G. C. Coal Co., 37 Md., *44560; 2 Kent Com., 340; Deansville Cemetery Asso., 66 N. Y., 569; Ryerson vs. Brown, 35 Mich., 333; Tyler vs. Beacher, 44 Vt., 648. Upon no other principle would the constitutional inhibition he of any value or protection to-the rights of private property.
Now, I take it to be clear, that, for the same reason that the Courts cannot he concluded upon the question of what, is a public use, the Legislature could not arbitrarily, and wholly irrespective of the fact, conclude the question here-involved, by simply declaring that special benefits to, abutting property would accrue from the particular improvement authorized, whether it he street, railway., turnpike road, or other highway, and therefore direct either the whole or a part of the cost of the improvement to he-assessed upon such property, and thus appropriate private-property to public use. And if the Legislature could not thus conclude the question, I know of no principle upon which a municipal corporation can do so by Ordinance. To say that either the Legislature or a municipal corporation can so proceed, is at once to break down all limitation or restriction as to the right, and to leave the whole matter entirely at the mercy of those who may he clothed with power to authorize the assessments. And the only answer that can be offered to the objection made to such unlimited power is, that we must not suppose that those-entrusted with its exercise will ever abuse it. But that, as we may easily perceive, is no answer at all, for it is-simply begging the whole question.
2. The next question is¿ was notice of the proceedings, essential, in order either to hind the property owners personally, or to fix the assessment as a charge upon the property assessed ?
Neither the Act of 18V4 nor the Ordinance under which the repaving was authorized to he done, made any provision in regard to notice; and, in fact, none was given. The Ordinance, passed without notice, at once became a *45conclusively binding decree, both in rem and in personam, according to present contention and decision, from which no appeal or relief can be had, however arbitrary or erroneous it may be. It is to bind not only the property ■authorized to be assessed, but the owners personally, and by that means all the property that they may own. 6 H. & J., 383; 45 Md., 621. And such being the case, the question is, whether such results can be effected by proceedings without warning or notice to those concerned, and yet be by due process of law, or by the law of the land, as those terms are now understood and applied ?
Of course, I am not to be understood as maintaining that taxes of any kind can only be assessed and collected by judicial proceeding. On the contrary, all taxes, under ■our system, are assessed and collected by proceeding in pais, and those proceedings are of necessity summary in their nature. But by the term summary, as said by the Supreme Court, in McMillan vs. Anderson, 95 U. S., 41, is ■not meant arbitrary, or unequal, or illegal. The assessment must, under both Federal and State Constitutions, be lawfully made. And in regard to notice, we know of no system of taxation in this country in which the parties affected by the assessments are not allowed, at some stage of the proceeding, an opportunity to be heard. Indeed, upon fundamental principles of right and justice, and as a guaranty of the rights of the •citizen against arbitrary exactions, notice is deemed, by the Courts of the highest authority, an essential element in the legality of all assessments, whether of ordinary taxes or for special benefits ; and any mode of assessment by which it has been attempted to deny to the parties affected the right and opportunity to be heard in their defence, has been denounced as essentially vicious, and therefore inoperative and void. Without notice, therefore, no valid assessment can be made. And it is no •answer to the objection of the want of notice that no *46injustice has heen done in the particular case, or that the assessment has been fairly and- justly made; for the legality of the Ordinance must be tested, not by what has been done in the particular instance, but by what may be done under its sanction. And for the plain proposition that notice, in all such cases as the present, is essential to the legality of the assessment, I need only refer to the cases of Overing vs. Foote, 65 N. Y., 263; In matter of Trustees of Public Schools, 31 N. Y., 574; Stuart vs. Palmer, 74 N. Y., 183; Philadelphia vs. Miller, 49 Penn St., 440; Butler vs. Saginaw, 26 Mich., 22; Thomas vs. Gain, 35 Mich., 155; Patten vs. Green, 13 Cal., 325; and to Cooley on Taxation, 265, 266.
Due process of law, say the Supreme Court of the United States, in the case of Murray vs. Hoboken Land and Improvement Co., 18 How., 272, is not confined to judicial proceedings, but extends to all proceedings which may affect the citizen in his rights of liberty or property. “ It is manifest,” say that Court, “ that it was not left to the legislative power to enact' any process which might be devised. The Article 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 in the cases of McMillan vs. Anderson, 95 U. S., 37, and Davison vs. New Orleans, 96 U. S., 97, the principle that the citizen is entitled to the-protection afforded by requiring “ due process of law,” in imposing assessments upon his property, is fully recognized. But in those cases, the Court held it to be “ due process of law,” when the statute, under which the assessments were made, gave the parties affected the right to apply to a Court of justice to determine the validity of the assessments ;■ — a privilege not accorded to the parties affected by the Ordinance involved in this case. Supposing therefore notice to be-essential to constitute “due. *47process of law,” in cases of assessment like the present, it is quite clear that the requirements of hoth the State- and Federal Constitutions have been wholly disregarded, in making the assessments in question.
In the case of Thomas vs. Gain, 85 Mich., 155, the question was as to the validity of an assessment authorized hy statute upon lots within a certain district, “in proportion to the number of superficial feet therein,” for the making of sewers. No notice to or hearing of the owners of the lots was provided for by the statute, and Judge Cooley, in delivering the opinion of the Court, declared that the parties whose property was to he taken under summary tax proceedings were entitled, as of right, to he heard at some stage in the proceedings, before the tax could become an established charge against them or their property. He said: “The principle was recognized hy this Court in Butler vs. Supervisors of Saginaw, 26 Mich., 22. In England, until appeals were given from sewer assessments, it was held that the party taxed might sue the officer in trespass or replevin for a levy on his property, and in that suit might defeat the assessment if he could show that he was not benefited as the Commissioners had adjudged. See Dove vs. Gray, 2 T. R., 358; Masters vs. Scroggs, 3 M. & S., 447; Netherton vs. Ward, 3 B. & Ald., 21; Stafford vs. Hamston, 2 B. & B., 691; Soady vs. Wilson, 3 Ad. & El., 248; Emmerson vs. Saltmarsh, 7 Id., 226; Board of Works vs. Bridge Co., 1 El. & Bl., 964. In this country we do not allow the justice of the assessment to be inquired into in a suit to charge the officers with a personal liability ; hut it follows legitimately from this that parties taxed must have an opportunity to he heard regularly at some stage in the proceedings. Their rights are not to he concluded hy proceedings which are wholly ex parte.”
This question was very fully considered hy the Court of Appeals of New York, in the case of Stuart vs. Palmer, *4874 N. Y., 183, and it was there held, that a statute imposing -an assessment for local improvement, without providing for notice to the owners of the property to he assessed, and an opportunity for them to be heard, was unconstitutional and void, as not being by “ due process of law.”
It is said that notice would he of no practical value or protection to the property owners, and hence it was not ■necessary to be given. But that is no reason whatever, in a legal and constitutional point of view, why they ■should not have notice, or why they should be denied the right to be heard before their property was actually charged ■and themselves made personally liable for the amount of ■the assessment. Such argument, however, has no real foundation either in reason or fact.
The second section of the Act of 1874, ch. 218, manifestly contemplates the exercise of discretion and judgment ■on the part of the Mayor and City Council, on each particular project of improvement, as to the right and propriety of assessing the cost of such improvement, in whole ■or in part, pro rata, upon the property binding on the ■street, lane, or alley, designed to be improved. Indeed, upon no other principle could the statute for a moment be sustained. The question, therefore, not only as to the propriety and need of the improvement itself, but the •question of the cost, the proportion and mode of assessment-^-whether the property abutting the improvement would really be specially benefited thereby, and to what extent; and whether it would be more just to assess the property according to its value, its area, or its front■age, — were all questions in which the property owners were vitally interested, and in respect to which they ■should have been heard. And it is only since the passage •of the Act of 1874 that this extreme and severe, and as I think dangerous, experiment, of denying the right of the citizen to be heard in these cases, has ever been ■attempted in the government of the City of Baltimore. *49In my judgment the experiment should not he sanctioned hy this Court.
3rd. As to the third proposition from which I dissent, I deem it necessary to say but little.
The Legislature, by the express terms of the Act of 1874, ch. 218, repealed secs. 845, 846, 847, 848, 849 and 850, of Article 4'of the Local Code, relating to the repaving and recurbing of streets in the City of Baltimore, and providing for the assessment of a portion of the cost thereof on the abutting, property, in proportion to its front feet„ Why this rule of assessment was entirely repealed, and in no form re-enacted, if it was not intended by the Legislature to get rid of it altogether, it is difficult to conjecture. The Legislature manifestly had a design in the repeal of the rule, and I think it is not difficult to perceivv the reason upon which they acted. By the repealing Act of 1874, the system which had previously prevailed up to that time, of only providing for repaving and recurbing the streets upon the application of two-thirds of the property owners along the street proposed to be improved, was abolished. The consent or application of the property owners was, by that Act, dispensed with, in those cases contemplated by the second section of the Act; and with that change it was but reasonable and proper that the arbitrary and unreasonable rule of assessment in proportion to the number of front feet should be abrogated.
What reason or justice is there in imposing the same amount of assessment on a given number of front feet of a lot only ten feet deep, with small or no improvement on it, as upon one two hundred feet deep, with large and valuable improvements thereon? And the same inequality, and consequent injustice, exist in the different localities of lots along the same street. The fundamental principle of taxation, that of equality according to value, is grossly violated in the application of this front foot rule; and it can therefore be no matter of surprise, nor *50ought it to he of regret, that the Legislature saw reason for abolishing it altogether. And this I take to be their declared meaning in the express repeal of section 845 Of Article 4 of the Local Code.
For the reasons I have stated, I am of opinion that the decree of the Court below, declaring the assessments void, ought to he affirmed by this- Court.