demanded for that sum and the foreclosure of the lien of the assessment against the real estate of the company and for an order of sale.

A second paragraph of the complaint alleged a like assessment against the property of one John T. Walton, the foreclosure of the lien thereon and the sale of the property, the balance due, and that the property of the railway was situated immediately back of it. The like judgment was prayed as in the first paragraph.

The only parts of the answer with which we are concerned are the allegations that the land of the railway company did not abut upon the street improvement, but lay back of lands owned by others which abutted upon the street, and "that in the proceedings of the common council of the city of Lebanon, in any action taken by the civil engineers of said city, in any notice to property owners, in any assessment of property had, given or done with reference to said improvement, this defendant's tracts were not named, described nor referred to, nor was either of them; that neither of said tracts was assessed for said improvement, neither of said tracts was considered with reference to any assessment for said improvement, neither of said tracts was benefited by said improvement; that the defendant did not appear before said council or any committee of said council, either actually or constructively, with reference to either of its said tracts, and the records of the proceedings of the city of Lebanon as to said improvements do not disclose any such appearance by or notice to this defendant, or the consideration or assessment of either of said tracts for such improvement."

The third paragraph of the answer is as follows:

"For third and further answer to the amended complaint and each of the paragraphs thereof separately the defendant says that the acts of the general assembly of the State of Indiana under and by virtue of which it is claimed and assumed that the liens respectively sued upon have accrued and attach to the respective tracts of the defendant is unconstitutional

Argument for Plaintiff in Error.

210 U.S.

and void, in that it makes no provision for a notice to or a hearing from the property owner whose property does not abut upon the street to be improved; it denies due process of law, denies the equal protection of the laws, and takes private property for public use without compensation."

Judgment was rendered against the company, which was affirmed by the Appellate Court on the authority of Voris v. Pittsburg Plate Glass Co., 163 Indiana, 599.

Mr. Frank L. Littleton, with whom Mr. Leonard J. Hackney was on the brief, for plaintiff in error:

The statute of Indiana, Burns' Rev. Stat., 1894, §§ 42884299, both inclusive, under and pursuant to which the alleged assessment involved in this case was made, is unconstitutional because it does not give, or purport to give, a property owner whose lands are located back of property abutting upon the street improved any hearing or opportunity to be heard upon the amount of the assessment levied against such owner's property. There is no hearing as to the special benefits at any stage of the proceedings, and the amount of the assessment against the back-lying property is arbitrarily determined by subtracting from the original assessment against the abutting owner the amount his property sells for on foreclosure. This is clearly a denial of due process of law. Central of Georgia Ry. Co. v. Wright, 207 U. S. 27; Security Trust Company v. Lexington, 203 U. S. 323; Boyd v. United States, 116 U. S. 616; Dartmouth College v. Woodward, 4 Wheat. 518, 581; Village of Norwood v. Baker, 172 U. S. 269; Wright v. Davidson, 181 U. S. 371; Bauman v. Ross, 167 U. S. 548; Spencer v. Merchant, 125 U. S. 345; Walston v. Nevin, 128 U. S. 578; Hibben v. Smith, 191 U. S. 310; Schaffer v. Werling, 188 U. S. 516; Raymond v. Chicago Union Traction Co., 207 U. S. 541; Beebe v. Magoun (Iowa), 97 N. W. Rep. 986; Lathrop v. City of Racine, 97 N. W. Rep. 192; State v. Pillsbury (Minn.), 85 N. W. Rep. 175; McKee v. Town of Pendleton, 154 Indiana, 652; Dexter v. City of Boston, 176 Massachusetts, 247; Charles

210 U. S.

Argument for Defendants in Error.

v. City of Marion, 100 Fed. Rep. 538; Kuntz v. Sumption, 117 Indiana, 1.

The statute of Indiana, Burns' Rev. Stat. 1894, §§ 42884299, under and pursuant to which the alleged assessment involved in this case was made, is unconstitutional and denies the back-lying property owner the equal protection of the laws because it gives the abutting property owner a hearing, or opportunity to be heard, on the question as to whether the proposed assessment exceeds the special benefits to his property, and denies such hearing or opportunity to the property owner whose property does not abut upon the street improved. Ex parte Drayton, 153 Fed. Rep. 986; Gulf &c. R. Co. v. Ellis, 165 U. S. 150; Yick Wo v. Hopkins, 118 U. S. 356; Raymond v. Chicago Union Traction Co., 207 U. S. 541; Beebe v. Magoun (Iowa), 97 N. W. Rep. 986; Chicago &c. R. Co. v. Swanger, 157 Fed. Rep. 783.

Mr. George H. Gifford, with whom Mr. Glen J. Gifford was on the brief, for defendants in error:

The statute of Indiana, Burns' Rev. Stat. 1894, §§ 42884299, in pursuance to which the assessments herein were made is in harmony with § 1 of the Fourteenth Amendment for the reason that said law furnished the plaintiff in error due process of law and equal protection of law guaranteed by said § 1 of that Amendment. Shaffer v. Werling, 188 U. S. 516; Fall Brook Irrigating Co. v. Bradley, 164 U. S. 168; Hibben v. Smith, 191 U. S. 321; Voris v. Pittsburg &c. Co., 163 Indiana, 599.

Assessments made for the construction of public improvements are in the nature of a tax and are subject to summary procedures the same as state, county and municipal taxation, and the law does not contemplate that there should be a decree or order of court to make such assessment valid, but it is sufficient if there is a tribunal or committee created by the statute to hear and determine the correctness of such assessment and a provision for due notice to the parties of such hearing, it is a full and complete compliance with the constitutional

provision of § 1 of the Fourteenth Amendment. Cass Farm Co. v. Detroit, 181 U. S. 396; Detroit v. Parker, 181 U. S. 399; Webster v. Fargo, 181 U. S. 394; French v. Barber Asphalt Co., 181 U. S. 324.

In matters of taxation and assessment for local improve-. ments where there is a taxing district established by the statute under which such proceedings are being prosecuted, a notice to all interested without setting out the name of the party owning ine real estate and without setting out the description of the property taxed is a sufficient notice. Lent v. Tilson, 72 California, 404; Ottawa v. Macy, 20 Illinois, 412; Voris v. Pittsburg &c. Co., 163 Indiana, 599.

It is the province of the legislature to fix the notice to be given in matters of public improvements. Hiland, Aud., v. Brazil B. Co., 128 Indiana, 340; Ottawa v. Macy, 20 Illinois, 413; Schaffer v. Werling, 188 U. S. 516.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

There is no question of the regularity of the proceedings. The controversy, therefore, is over the statute. Does it afford due process of law? A review of it is necessary to the determination of the question. It provides that upon the petition to the common council of two-thirds of the whole line of lots bordering on any street or alley, consisting of a square between two streets, and if the council deem the improvement necessary, it shall declare by resolution the necessity therefor, describing the work, and shall give two weeks' notice thereof to the property owners in a newspaper of general circulation published in the city, stating the time and place when and where the property owners can make objections to the necessity of the improvement.

If the improvement be ordered notice is to be given for the reception of bids. When the improvement has been made and completed according to the terms of the contract therefor

made the common council shall cause a final estimate to be made of the total cost thereof by the city engineer, and shall require him to report the full facts, the total cost of the improvements, the average cost per running foot of the whole length of the part of the street improved, the name of each property owner and the number of front feet owned by him, with full description of each lot or parcel of ground bordering on the street improved, the amount due upon each lot, which shall be ascertained and fixed by multiplying the average cost price per running foot by the number of running front feet of the several lots or parcels of ground respectively.

Upon the filing of this report the council is required to give notice of two weeks in a newspaper of the time and place, when and where, a hearing can be had before a committee appointed by the council to consider such reports. The committee is required to report to the council recommending the adoption or alteration of the report, and the council may adopt, alter or amend it and the assessments therein. Any person feeling aggrieved by the report shall have the right to appear before the council and shall be accorded a hearing. The council assesses against the several lots or parcels of land the several amounts which shall be assessed for and on account of the improvement.

It is provided that the owner of lots bordering on the street, or the part thereof to be improved, shall be liable to the city for their proportion of the costs in the ratio of the front line of their lots to the whole improved line of the improvement, and that the assessment shall be upon the ground fronting or immediately abutting on such improvement, back to the distance of one hundred and fifty feet from such front line, and the city and contractor shall have a lien thereon for the value of such improvements.

It is further provided that where the "land is subdivided or platted the land lying immediately upon and adjacent to the line of the street and extending back fifty feet shall be primarily liable to and for the whole cost of the improvement,