c10:No. 872

Mr. Justice Matthews,
with whom concurred Mr. Justice Harlan, dissenting.
I am unable to agree with the judgment of the court in this case, and will state very briefly the ground of my dissent.
In Stuart v. Palmer, 74 N. Y. 183, the Court of Appeals of the State of New York declared the statute of the State of New York of 1869, chapter 217, as amended by the statute of 1870, chapter 619, and the assessment made' in pursuance thereof, to be unconstitutional and void. In the opinion of the court in that case, delivered by Earl, Judge, and which was the unanimous opinion of the court, the ground of its judgment was stated as follows (p. 188): “ I am of opinion that the Constitution sanctions no law imposing such an assessment without a notice to, and a hearing, or an opportunity of hearing, by the owners of the property to be assessed. It is not enough' that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them a right to a hearing, and an opportunity to be heard. -It matters not, upon the question of the constitutionality of such a law, that the assessment has in' fact been fairly apportioned. The .constitutional validity of law is to be tested, not by what has been done under it, but by what. may. by its authority be done. The legislature may prescribe the kind of notice, and the mode in which it shall be given, but it cannot dispense with all notice.” And, on page 190, it was further said: “ 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 upon 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 defence 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. This provision is the most important guaranty of personal rights to be found in the Federal or State Constitutions. It is a limitation upon an arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily' be deprived of his life, liberty, or property. This the legislature cannot do, nor authorize to be done. ‘ 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 nature. Weimer v. Bunbury, 30 Mich. 201. This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.”
Accordingly, the assessment for the expense of regulating and grading the avenue under the act of -1869, as amended by the act of .1870, was declared null and void as against parties refusing to pay.
Subsequently, ,by the statute of 1881, chapter 689, the legislature of New York directed the levy to be made upon the lands, the assessment • made upon which under the act of 1869 had been declared void and cancelled, of the same sum which had been assessed under the act of 1869, together with interest thereon to February 1, 1879, amounting to $8293.33, and further interest thereon at six per cent per annum from February 1,1879, to the date of such levy. This act required the Board of Supervisors pi Kings County to apportion this sum among the several parcels of land mentioned, after giving ten days’. notice of the time and place when they would meet to make such apportionment, to the parties interested in said lands, who should be entitle^ to be heard before the board upon the question of the apportionment. It is to be observed, how;ever, that this apportionment is only to be-made as between the lands in respect to which the prior assessment had been cancelled as being void. The question of the original apportionment between those lands and the remaining lands, on which the owners had paid the first assessment, was not left open under the act of 1881. By this act, therefore, the ownerssof the lands in question were deprived of the opportunity of being heard upon the question whether the apportionment as between them and the other land owners, embraced within the original assessment district for the same improvement, was equitable and fair. They were, therefore, deprived by the act of 1881 of the very thing of which they were deprived by the act of 1869, on account of which the Court of Appeals of New York held the latter act to be unconstitutional and void. It is impossible for me, therefore, to reconcile the opinion of the Court of Appeals of New York now under review and the opinion of the same court in the case of Stuart v. Palmer. The same objection applies 'to both statutes with equal force. As I think the Court of Appeals was right in its judgment upon the first statute, I am of opinion that its judgment upon the act of 1881, involved in this writ of error, should be reversed.
The argument against this conclusion, which seems to be chiefly relied on, is, that in the act of 1881 the legislature made a new assessment upon a new assessment district created for that purpose by the statute, and fixed the whole amount to be raised, leaving the question of apportionment open as between the parties, upon notice and a hearing, and that all this was within the admitted competency of the legislative power of the State, the exercise of which cannot be construed as depriving the parties of their property without due process of law. But it seems to be a mere evasion to say that this was an original assessment upon a district created by law for that purpose, consisting of the lands adjudged by the legislature to be benefited by the improvement. The improvement was ordered by-the act of 1869, and the assessment district was created by it, and so far as the laying out of the street and the appropriation of. private property for that purpose, and awarding damages to the owners, thereof, and assessing the amount of such awards, and the attendant expenses upon the lands lying within three hundred feet on either side of the avenue, which in the judgment of the commissioners should be benefited by opening and extending the street, that act and what was thus far done under it were not invalidated, but were held to be in conformity with the Constitution. In the act of 1881, the legislature of New York did not profess to undo anything which had been done under the act of 1869, and certainly did not begin de novo in dealing with the improvement. On the contrary, they took that portion of the old assessment for the expense of regulating, grading, and preparing the street for travel which remained unpaid, and which had been declared to be void, and revived it by a mere act of legislation as against the parties who had been judicially declared not to be bound by it, adding interest upon it from the time when it was first charged tp the State by virtue -of the cancellation, as well as a part of the expenses incurred in making the original assessment. Stich an act of the legislature seems to me to be in violation of that provision. of the Fourteenth Amendment to the Federal Constitution which declares that no State shall deprive any person of his property without due process of law.
I am authorized by Me. 'Justice Hablan to say that he concurs in these views.

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