Nicholson, Chancellor,
delivered the opinion of the Court.
It is not open to doubt, nor is it questioned in this case, that it is within the power of the Legislature to require that the expense of constructing drains, sewers, and the like, should be met, in whole or in part, by local assessments made upon persons or property benefited or deemed to be benefited. “ Legislation of this character, both in respect to its justice and constitutional validity, has been extensively discussed by judicial tribunals of nearly every State in the Union. The Courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvement is a branch of the taxing power, or included within it; and the many cases which have been decided [84]*84fully establish the general proposition that a statute authorizing the municipal authorities to open or establish streets, or to make local improvements of the character above mentioned, and to assess the expense upon the property which, in the opinion of the designated tribunal or officers, shall be specially benefited by such street or improvement, in proportion to the amount of such benefit, or upon the abutters in proportion to benefits or frontage or superficial contents, is, in the absence of some special constitutional provision, a valid exercise of the power of taxation. Whether the expense of making such improvement shall be paid out of the general treasury, or be assessed upon the abutting property or other property specially benefited, and, if in the latter mode, whether the assessment should be upon all property found to be benefited, or alone upon the abutters according to frontage or according to the area oí their lots, is, according to the present weight of'authority, considered to be a question of legislative expediency, unless there is some special restraining constitutional provision upon the subject. Whatever limitation there is upon the legislative power of taxation (which includes the power of apportioning taxation) must be found in the nature of the power and in express constitutional provisions,-” 2 Dill. Mun. Corp. § 752. The foregoing quotation from Judge Dillon’s excellent work presents, with clearness and precision, the general propositions established by the innumerable decisions upon the general subject of assessment for local improvement; and he has cited and commented upon, in his notes to the passage above quoted, a vast number of authorities, including nearly all those that have been cited in this connection in the able and elaborate briefs of the counsel in this cause. A leading case, cited with approval in numberless cases, and quoted at great length in Cooley’s Constitutional Limitations, is People vs. Mayor, etc., of Brooklyn, 4 N. Y. 420, decided in 1851. In this case Judge Buggies says: “ It must be conceded that the power of taxation and of apportioning taxation, or of assigning to each individual his share of the burden, is vested exclusively in the Legislature, unless this power is limited or restrained by some constitutional provision. The power of tax[85]*85ing and the power of apportioning taxation are identical and inseparable. Taxes cannot be laid without apportionment, and the power of apportionment is therefor unlimited, unless it be restrained as a part of the power of taxation.” In the same case the learned judge also says : “ The difference between general taxation and special assessments for local objects requires that they should be distinguished by different names, although both derive their authority from the taxing power. They have always been so distinguished, and it is therefore evident that the word ‘ tax ’ may be used in a contract or a statute in a sense which would not include a street assessment, or any other local or special taxation, within its meaning. Several cases are found in which it has been adjudged to have been so used. But in no case has it been adjudged that the street assessments are not made by virtue of the legislative taxing power.” In this State there is no express constitutional provision upon the subject of taxation, and no cases have arisen here directly involving the questions raised by the case before us, although the leading principles illustrating the nature and extent of the power of taxation, and the limitations upon its exercises inherent in its nature, have been admirablyjset forth by Judge Grubb in the opinion delivered by him in the well-known case of Frieszleben vs. Shallcross, 9 Houst. 99.
It is altogether too late in the development, both by legislation and elaborate 'judicial decisions, in States other than our own, of the general principles controlling local assessments for local improvements, for it to be necessary or proper for me to enter into a more elaborate or detailed review of the multitude of authorities sustaining the general propositions already laid down. It is well settled law (1) that the whole subject of taxing districts belongs to the Legislature; (2) that the apportionment between the public and the local owners is within the power of the Legislature; (3) that the Legislature may' fix upon the basis of apportionment between individuals, In fixing upon the basis of apportionment, the two methods between which a choice is commonly made in statutes providing for local assessments are: (1) An as[86]*86sessment made by assessors or commissioners appointed for the purpose under legislative authority, who are to view the estates, and levy the expenses in proportion to the benefits which, in their opinion, the estates, respectively, will receive from the work -proposed ; (2) an assessment by some definite standard fixed upon by the Legislature itself, and which is applied to estates by a measurement of length, quantity, or value. Cooley, Taxation 448. The principle is the same in either case, and is concisely expressed by Chief Justice Shaw in one of the early American cases (Wright vs. City of Boston, 9 Cush. 241), in language which has been universally quoted, both with and without crediting-him with it. He says: “ Those who enjoy the benefit shall equally bear the burden.” And again : “ The benefits actually or presumptively received support the tax.” And elsewhere in the same case, which was a sewer case: “ The potentiality of receiving a benefit from a sewer is the thing to be charged with the tax.” It is obvious that the essential difference between the two methods of apportionment Íis that when the Legislature adopts the latter method it decides it-I self the proportion in which the estates, respectively, will be benefited ; as when it determines that the frontage or area of abutting lots, or both combined, shall constitute the measure of a sewer assessment. If the Legislature has exercised its power bona fide, it must necessarily have considered all the circumstances surrounding the particular case, and have decided that, all things considered,such a measure would prove as nearly just and equal in its actual operation as any practicable method could be. In the case before us the latter method is the one adopted, and the mode by which the Legislature arrived at the basis of apportionment fixed upon by it is fully explained by the general statement of facts already cited, and the act itself, which begins with the following preamble :
“ Whereas, it is apparent that the City of Wilmington stands in great need of a thorough system of sewers that will be extended over the entire city, providing not only for the present but for the future. Whereas, a proper regard for the health of the inhabi[87]*87tants of the city as well as their property and business interests, requires that this work be speedily undertaken. Whereas, a plan of a well defined system has been prepared under the direction of the Board of Directors of the Street and Sewer Department, and an approximate estimate of the cost of building the same has been duly made : Now, therefore,” etc.
Regarding the whole contemplated system of sewerage as one complex whole, the Legislature determined that equity and fairness demanded that the whole city should be made a single taxing district for the purpose of defraying the cost, so that the burden could be distributed equally throughout the whole territory to be benefited, no property to bear its share of the burden until it should possess “ the potentiality of receiving a benefit ” from the system by having a link of that system placed in front of it. As this great work—the complete sewerage system upon the plan adopted and laid before them by the Street and Sewer Department—would not be finished for many years, it necessarily followed that, if the cost of the whole was to be so assessed, it must be the estimated cost. An approximate estimate of the cost of the completed work,'based upon elaborate calculations as described in the above statement of facts, had been prepared and submitted to the Legislature by the Street and Sewer Department, together with calculations and maps of the area and frontage of the lots within the city, and the area of the streets, and the cost of furnishing the streets with manholes and inlets. Using these calculations and figures, the Legislature determined that, as between the public and the estates benefited, two-fifths of the estimated cost should be borne by the public,i. e., by general municipal taxation; and then employing the method of apportionment, as between individuals, commonly known as the combined frontage and area system (Cleveland vs. Tripp, 13 R. I. 60, and cases there cited), they arrived, by a simple arithmetical calculation, at the result that the share of three-fifths of the estimated cost ($1,741,000) to be assessed upon each front foot of land within the taxation district amounted to 50 cents, and the [88]*88share of three-fifths of the same to be assessed upon each square foot of área amounted to 1 cent. Judge Cooley sums up so admirably the grounds upon which the courts would undertake to decide that the Legislature had exceeded its authority in such exercise of the taxing power that I will quote and adopt his language, as follows: “ It is conceded that the Legislative judgment that a certain district is or will be so far specially benefited by an improvement as to justify a special assessment is conclusive, and that its determination as to what shall be the basis of the assessment is equally conclusive. To invoke the intervention of a court for relief against the results of its conclusion is to invoke the judicial authority to give its judgment controlling effect over that of the Legislature, in a matter of the apportionment of a tax, which by concession on all sides is purely a matter of legislation. This is confessedly inadmissible in any case where the legislative power has not been exceeded by an apportionment merely colorable. An assessment so grossly and palpably unjust and oppressive as to give demonstration that the legislative judgment had never determined the case on the principles of taxation must always be open to correction. A man’s property is not to be taken from him with impunity, ánd without redress, by simply calling the appropriation an ‘ assessment,’ when it is not such in its elements.” Cooley, Tax’n, pp. 459, 460. In the act under consideration it is clearly the opinion of the Court that the legislature had acted within their legitimate sphere, so far as the objections hitherto considered are concerned, which cannot be sustained either on principle or authority. The following are some of the cases in which the courts in other states have sustained similar statutes, for the method of apportionment adopted by the Legislature in this case seems to have become increasingly popular of late years throughout the Union: Cleveland vs. Tripp, 13 R. I. 60; Magee vs. Com., 46 Pa. St. 358 ; Stroud vs. City of Philadelphia, 61 Pa. St. 255; in re Washington Ave., 69 Pa. St. 352, 361 ; Palmer vs. Stumph, 29 Inch 329 ; Allen vs. Drew, 44 Vt. 174; Ernst vs. Kunkle, 5 Ohio St. 520 ; Upington vs. Oviatt, 24 Ohio St. 232; Parker vs. Challiss, 9 Kan. 155; Motz vs. City of Detroit, 18 Mich. 495; [89]*89State vs. Fuller, 34 N. J. L. 227; City of St. Louis vs. Clemens, 49 Mo. 552; Emery vs. Gas Co., 28 Cal. 345; Chambers vs. Satterlee, 40 Cal. 497, 514; People vs. Lynch, 51 Cal. 15; City of St. Louis vs. Oeters, 36 Mo. 456; Selby vs. Commissioners, 14 La. Ann. 434.
In the case of Thomas vs. Gain, 35 Mich. 156, decided in 1876, which was cited in the argument as the strongest case against such an apportionment, Cooley, C. J., in an elaborate opinion Avliich reviewed the more important cases up to that date, held a certain sewer assessment, apportioned by superficial area alone, invalid, but he distinguishes as follows : “ In what has been said it is not intended to decide or to intimate that a sewer tax may not, under some circumstances, be lawful though apportioned by the area of the lots assessed. If, under the law providing therefor, the assessment were confined exclusively to the lots lying contiguous to each other, and on or near the streets in which the sewer was to be constructed, and all properly urban lots, or, as they are sometimes designated, ‘ inlots,’ as distinguished from the outer lands of a town, which receive only slight and indirect benefit from such improvement, and if the law also provided for private drains into the sewer as a matter of right on the part of the proprietors of the lots assessed, the case would be so different from the one now before us that much of what we have said could have no application. We confine our discussion strictly to the record before us, and to the act under which this assessment was laid, not caring to enter upon any discussion of hypothetical cases which may never arise, or which, if they do arise, can better be considered Avhen their special features are presented for consideration.” It is only necessary to submit the provisions already set forth of the act under consideration to the tests here applied, to observe that they contain all the essential features of a valid act which these tests suggest.
With regard to the objection that the assessment is based upon an approximate estimate of cost made in advance, and that it might happen that the actual cost would be less than the sum so .estimated and collected, it may be remarked that this has been uniformly held [90]*90to be no cause for invalidating any assessment, for obvious reasons of public policy, and the necessity for such estimates in every branch of taxation. Davidson vs. City of New Orleans, 96 U. S. 97.
The ground is now clear for the consideration of the remaining and more important objection to the constitutionality of the actr viz : the want of notice ; it being strongly urged and ably argued by counsel that the want of notice is fatal to the validity of the assessment on the fundamental principles of civil liberty, and more especially because of the due process of law clause in the Fourteenth Amendment to the Constitution of the United States. Whenever the first method of assessment above referred to is adopted by the Legislature, viz: 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 porportion 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. That is so clear that it is remarkable that it should have been litigated at so late a date as the well-known New York case of Stuart vs. Palmer, 74 N. Y. 183. The question has been repeatedly discussed, however, when the second method has been adopted ; that is, when the Legislature, as in this case, itself fixes upon some definite standard, which is applied to estates by a measurement of length or quantity or by a value independently fixed. In such cases it is argued that nothing remains to be done to fix upon each individual the amount of his assessment except to make a mathematical calculation, and as a hearing, or an opportunity for a hearing, would therefore be useless and futile, the maxim, “ Cessante ratione, eessat et ipsa lex,” would apply. It seems impossible to find any valid distinction between the unquestionable power of the Legislature to impose, without notice, or. opportunity for a hearing, such taxes as poll taxes, license taxes (not dependent upon the extent of the individual’s business), and generally, specific taxes on things or persons or occupations, and their power to impose, in the same manner, that kind of tax called “ special assess[91]*91ment for local improvement,” subject, of course, to the limitations already set forth, which are inherent in the nature of the taxing power, and have been already dwelt upon at great length. In the case of the taxes first above enumerated the Legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. But the Supreme Court of the United States is the tribunal to which we must look for the authoritative construction of the Fourteenth Amendment to the United States Constitution and its application to this question of notice. There is a series of decisions of that Court, bearing more or less directly upon this question, which are referred to and reviewed in every well-considered case upon the subject. It will not be necessary, however, to cite or review them all, for they are all reviewed fully in the two cases from.which I shall quote at length. In Hagar vs. Reclamation Dist. No. 108, 111 U. S. 701, decided in October, 1883, Mr. Justice Field, in defining “ due process of law ” says: “ What constitutes the process may be difficult to define with precision so as to cover all cases, it is no doubt wiser as stated by Mr. Justice Miller in Davidson vs. New Orleans, to arrive at its meaning by ‘gradual process of judicial inclusion and exclusion as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.' 96 U. S. 97, 104. It is sufficient to observe here that by “ due process ” is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law; it miist be adapted to the end to be attained; and, wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights.” Hurtado vs. People, 110 U. S. 516-536. He further says in the same case: “ Of the different kinds of taxes which the State may impose, there is a vast number of [92]*92which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally specific taxes on things or persons or ■occupations. In such cases, the Legislature, in authorizing the tax, fixes the amount, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question that the proceeding is due process of law, as there is no inquiry into the weight of the evidence or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. JSTo right of his is therefore invaded. Thus if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard or bushel or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or restaurant, or selling liquors or cigars or clothes, he has only to pay the amount required by the law and go into the business. There is no need in such case for notice or hearing.” In this case the reason for the requirement of notice is well illustrated and also the limitation of the requirement to cases in which notice ■could be of some conceivable use,—to cases where, if a hearing were had, there would be something to hear and determine. The familiar illustrations, taken from species of taxation with which we are all familiar, make clear the analogies which have guided legislatures in apportioning assessments for local improvements directly by mathematical calculation, and without opportunity given to property owners for a hearing as to the amount of each individual’s assessment
The next Supreme Court case I desire to consider (Spencer vs. Merchant, 125 U. S. 345), is directly in point, and requires elaborate consideration, for it will be impossible to correctly interpret a decision which is the final authority upon the point under consideration, unless we thoroughly understand the peculiar circumstances of the case, and what was actually decided, without which the mere [93]*93language and dicta will be sure to prove misleading, as we think has already been shown in a case decided not long since in a neighboring state. The facts of the case of Spencer vs. Merchant were these: A New York statute of 1869 (chapter 217), as amended by the statute of 1870 (chapter 619), provided for laying out a street in continuation of Atlantic avenue, in the City of Brooklyn, by three commissioners, who, after notice of twenty days, should award the damages to the land owners, and assess the amount of the award and the attendant expenses upon the lands lying within 300 feet on either side of the avenue, which, in their judgment, should be benefited by opening and extending it, and report such award and assessment to the court for confirmation, after public notice, that all persons having objection to it might be heard before the court, etc. This statute, as amended, then went on to provide that, upon the confirmation of the report as to the opening of the street, the commissioners should be authorized to enter upon the land taken, to cause it to be regulated, prepared, and graded for public travel, and to assess the expense of such regulating, grading, and preparing for travel upon the lands and premises whicbo in their judgment should be benefited by such improvement, in proportion to the benefit accruing to them by reason thereof, the district of assessment to extend back as provided theretofore in the act. But it omitted to provide for any notice to the property owners of this assessment for regulating, grading, and preparing for travel, or any opportunity for a hearing. The sums so assessed upon some lots were paid, but the sums assessed upon other lots remained unpaid, the owners contesting the validity of the assessment. On June 18, 1878, the Court of Appeals of New York declared that assessment void because no notice or opportunity for a hearing had been given. This was the well-known case of Stuart vs. Palmer, 74 N. Y. 183, already referred to. On January 29, 1879, comptroller of the State canceled the unpaid assessment, and charged the county with the amount, together with the interest. Thereupon a statute of 1881 (chapter 689) directed that a sum equal to so much of the original assessment so [94]*94unpaid and so cancelled as remained unpaid should be levied on the lots, the assessment made upon which under the original act had not been paid, together with interest and a proportionate part of the expenses. The lots so assessed (being those only whose owners had contested the original assessment which had been held void) were isolated parcels, not contiguous, and many of them not fronting on the avenue. Most of the territory benefited as fixed in the statute of 1869, and a great portion of the original assessment, were not included in the statute of 1881, nor directed to be taken into consideration in making the new assessment. But this assessment included a proportionate part of the expenses of the former assessment, which had been declared void by the Court of Appeals. As between the individual owners of the group of lots upon which this assessment was laid, the amount assessed upon the group was to be apportioned by a board after notice and an opportunity for a hearing. This act was held constitutional by the New York Court of Appeals (Spencer vs. Merchant, 100 N. Y. 587, and a writ of error was sued out, the error assigned being that the statute and the proceedings thereunder were in violation of the Constitution of the United States, and were void, for the reason that they deprived th'e plaintiff and the other persons assessed thereunder of their property without due process of law. The particular point raised by the case, as stated by Judge Finch, of the New York Court of Appeals (and his language was adopted by Justice Gray, who delivered the opinion of the majority of the United States Supreme Court), was as follows: “ The precise wrong of which complaint was made appears to be that the land owners now assessed never had an 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.” 125 U, S. 354. The nature and extent of the taxing power is discussed at some length, and the series of United States Supreme Court decisions, upon the subject to which we have already referred, is cited, and then Justice Gray .says: “ I11 determining what lands are benefited by the improvement, the Legislature [95]*95may avail itself of such information as it deems sufficient, either through investigations by its committees, or by adopting as its own the estimates or conclusions of others, whether those estimates or conclusions previously had or had not any legal sanction. In section 4 of the statute of 1869, the assessment under which was held void in Stuart vs. Palmer, 74 N. Y. 183, for want of any provision whatever for notice or hearing, the authority to determine what lands, lying within three hundred feet on either side of the street, were actually benefited, was delegated to commissioners. But in the statute of 1881 the Legislature itself determined what lands were benefited and should be assessed. By this statute the Legislature, in substance and effect, assumed that all the lands within the district defined in the statute of 1869 were benefited in a sum equal to the amount of the original assessment, the expense of levying it, and interest thereon; and determined that the lots upon which no part of that assessment had been paid, and which had therefore as yet borne no share of the burden, were benefited to the extent of a certain portion of this sum. That these lots as a whole had been benefited to this extent was conclusively settled by the Legislature. The statute of 1881 afforded to the owners notice and hearing upon the question of the equitable apportionment among them of the sum directed to be levied upon all of them, and thus enabled them to contest the constitutionality of the statute, and that was all the notice and hearing to which they were entitled.” In thus holding that the Legislature, without notice, could conclusively settle that the lots upon which no part of the void assessment had been paid, and which, as we have seen, were “ isolated parcels not contiguous, and many of them not fronting on the avenue,” should be assessed a certain portion of a certain sum imposed upon all the lots within the district created by the act under which the void assessment was made, it would seem that the Supreme Court necessarily implied that the Legislature could also have conclusively settled, if it had seen fit so to do, the portion of that portion which each of the selected lots should be assessed; provided that, under the general laws of New York, it would have been possible for the [96]*96lot owners to contest the constitutionality of the act. It is impossible to conceive of any objection to the power of the Legislature to fix without notice the amount of the assessment upon the individual lots of such a selected group of lots which would not apply with equal force to fixing it upon such a group. If it could distribute the amount between different groups of lots, why could it not distribute the amount apportioned to a group, between the individuals of a group? It is true that in the concluding paragraph of the clause above cited Justice Gray refers to the notice and hearing granted to the individual lot owners, but it is to be remembered that the mode of apportionment between them was according to the judgment of commissioners as to the amount of benefit, which necessarily depended upon and required a hearing, and the bearing of such a hearing upon the point decided by the court would seem to be indicated by the concluding sentence of the above-quoted clause, in which Justice Gray says : “It thus enabled them to contest the constitutionality of the statute, and that was all the notice and hearing to which they were entitled.” But under the laws of this state any property owner whose rights were affected by the statute now under consideration could at the proper time test the constitutionality of the act, and, further, could introduce proceedings for the correction of injustice, fraud, or error in making the mathematical calculations required. Thus are also met the requirements laid down by the Supreme Court in the case we have already cited of Davidson vs. City of New Orleans, 96 U. S. 97.
The Rhode Island courts have sustained statutes almost identical with this one, Cleveland vs. Tripp, 13 R. I. 60, already cited, being the leading case. And in Gillette vs. City of Denver, 21 Fed. Rep. 823, a sew-er assessment case, where the assessment was imposed upon the property within the district according to the area, and the objection was raised that no notice was provided, and there was therefore no due process of law, Circuit Justice Brewer said (page 824): “ Now, in this case, the tax is laid by the area; no question of value, no matter of judgment,—a mere mathematical calculation ; and of what earthly profit could it be to a taxpayer to have [97]*97notice of that calculation ? He can make it himself. He cannot correct by the testimony the judgment of anybody ; it is as exact and settled as anything can be.” In Maryland the majority of the Court in the case of Ulman vs. Mayor, etc., 72 Md. 587, have reversed a series of prior decisions, viz: Mayor, etc. vs. Scharf, 56 Md. 50; Mayor, etc. vs. Johns Hopkins Hospital, 56 Md. 1; Moale vs. Mayor, etc. 61 Md. 224; and Alberger vs. Mayor, etc., 64 Md. 1, and'base their opinion apparently upon certain expressions about notice employed by Justice Gray in the above-cited case of Spencer vs. Merchant. But the Court take occasion to say (page 595): “ Some cases have held that where the appointment has been made by the Legislature it is final; but, without pausing to discuss this proposition, it is only necessary to say that those cases are not applicable here, for the very obvious reason that the act of 1874 (the act before them) has made no such apportionment.”
Some objections have been made by counsel for the plaintiff that the proceedings of the defendant were not in certain respects in accordance with the provisions of the act, but after examination we are unable to find any irregularity, and consider, in view of the authorities and reasoning we have already set forth at length, that 19 Del. Laws, c. 209, does not conflict either with the provisions of the Constitution of the State of Delaware, or with the Fourteenth Amendment of the Constitution of the United States, and is in all respects constitutional. We are of the opinion that the assessment and lien aforesaid ought not to be reversed, canceled, or annulled, and we shall therefore so certify to the Superior Court for New Castle county.
All the judges concurred in the above opinion, with the exception of Cullen, J., who dissented, but read no dissenting opinion.