Horace Gray

“ No hearing would open the discretion of the legislature, or be of any avail to review or change it. A hearing is given by the act as to the apportionment among the land-owners, which furnishes to them an opportunity to raise all pertinent and available questions, and dispute their liability, or its amount and extent. The precise wrong of which complaint is made appears to be that the land-owners now assessed never had opportunity to be heard as to the original apportionment, and find themselves now practically bound by it as between their lots and those of the owners who paid. ”

“ If the legislature provides for notice to and hearing of each proprietor at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law. ”

“ In the opinion of the court in that case, delivered by EARL, J., 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. ”

“ The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading, or repairing of a street, to be assessed upon the owners of lands benefited h ereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. ”

“ New Orleans it was held that if the work was one which the state had the authority to do, and to pay for by assessments on the property benefited, objections that the sum raised was exorbitant, and that part of the property assessed was not benefited, presented no question under the fourteenth amendment to the constitution upon which this court could review the decision of the state court. ”

“ The legislature made a reassessment, imposing two-thirds of the expense upon a benefited district, and one-third upon the city at large. The act was held valid as a new assessment, and not an effort to validate a void one. These views furnish also an answer to the objection that the only hearing given to the land-owner relates to the apportionment of the fixed amount among the lots assessed, and none is given as to the aggregate to be collected. ”

“ The power to tax may be exercised oppressively upon persons; but the responsibility of the legislature is not to the courts, but to the people, by whom its members are elected.' Bank v. Fenno, 8 Wall. ”

“ That power of taxation is unlimited, except that it must be exercised for public purposes. Weismer v. Douglas, 64 N. Y. 91. Certainly if the acts of 1869 and 1870 had never been passed, but the improvement of Atlantic avenue had been ordered, the legislature might have imps ed one part or proportion of the cost upon one designated district and the balance upon another. Practically just that was done in this case. In Re Van Antwerp, 56 N. Y. 261, an assessment for a street improvement had been declared void by reason of failure to procure necessary consents of property owners. ”