The following opinion was filed September 26, 1895:
1. There is no practice known by which the plaintiff in an equitable, action may be nonsuited for a failure to produce evidence to support his cause of action. Such a motion can be made and allowed only in strictly legal actions. The course pursued in the present instance was clearly irregular. The court should have made a proper finding of facts and conclusions of law, pursuant to statute (R. S. sec. 2863), and, if of the opinion that the plaintiff upon his • own showing had not made out his case, should have dismissed his complaint. The object of the statute in requiring a finding of facts, and conclusions of law seems to be not only to show what was really adjudicated, but to facilitate a review of the case on appeal upon exceptions to the findings; and while it has been held that lack of or defects in the findings are not ground of reversal in an equity, case if the judgment *426is supported by the evidence {Jones v. Jones, 71 Wis. 513; Wilkinson v. Wilkinson, 59 Wis. 557), still we think that the statute is obligatory upon the court, and that the better practice is to make such findings, and that the practice pursued in the present case is to be discouraged. The statute is that: “Upon a trial of a question of fact by the court, its decision shall be given in writing, and filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly, as of the term at which the cause was tried, and the judge shall state in his decision separately: (1) the facts-found by him; (2) his conclusions of law thereon.” Although an appeal in equitable actions is, in substance, a new trial, there can be no doubt, we think, that the legislature intended to require that findings in equitable actions shall be made in like manner as in legal actions.
2. The city charter (ch. 184, Laws of 1883) contains no provision for giving any notice, either actual or constructive, at any stage of the proceeding, in making an assessment or levying special taxes against the property of lot owners for building sewers, nor does it, in fact, authorize any such tax or assessment. The only provision. purporting to confer power upon the common council to make such assessments is found in ch. 5, Laws of 1885, amendatory of the charter, adding a new section (98a), which reads as follows: “Sewers, drains or ditches may be made or dug or repaired by the common council at the cost, charge or expense, in whole or in part as the council may determine, of the lot or lots which may be benefited thereby, and the common ' council shall apportion such costs, charges and expenses among and on such°lots, in such proportion or amount as said common council shall deem such lots benefited thereby, and such amounts shall be levied and assessed upon said lots as a special tax, and be inserted in the tax roll first made out there*427after, and collected as other, special taxes are; said work may be done by the common council or men in its employ, or let out by contract to some third party.”
It will be seen that the act makes no provision whatever for any notice to the property owner at any stage of the proceeding before the issue of the tax warrant. It has been repeatedly held that “ assessments for local improvements can be sustained only upon the theory that the lots or lands upon which they aré laid are specially benefited thereby; that a law authorizing such assessments without reference to benefits would, in its operation, take property for public • benefit without compensation, or take property from one person for the benefit of another, and in either view would be unconstitutional.” Stuart v. Palmer, 74 N. Y. 189, and cases there cited. The power of the legislature to impose, taxes and assessments for public purposes is unlimited, except as restrained by constitutional provisions, and is the exercise of the highest attribute of sovereignty; but in all such cases there must be an apportionment of -the burden, either among the property owners generally or the property specially benefited by the local improvement the cost of which is to be assessed against such property; and a tax or assessment upon property, arbitrarily imposed without reference to some system of just apportionment, cannot be upheld. Property cannot be taken by the right of eminent domain without some notice to the owner, or some opportunity on his part, at sopie stage of the proceeding, to be heard as to the compensation to be awarded him. Hood v. Finch, 8 Wis. 381; Seifert v. Brooks, 34 Wis. 443; State ex rel. Flint v. Fond du Lae, 42 Wis. 287; Kundinger v. Saginaw, 59 Mich. 361; State ex rel. Andrews v. Oshkosh, 84 Wis. 559. Certainly it cannot be maintained that by assessments made without notice to the lot owner his property may be assessed to one half or more- of its value, and he be deprived of it without an opportunity to be heard.
*428It has often, been held that “ it is a rule founded upon tbe first principles of natural justice that a citizen shall not be deprived of his life, liberty, or property without an opportunity to be heard in defense of his rights, and that the constitutional provision that no person shall be deprived of these without ‘ due process of law,’ has its foundation in this rule.” “Due process of law” is required hr every proceeding by which a citizen may be deprived of life, liberty, or property, whether the proceeding be judicial, administrative, or executive. In general, it requires “ an orderly proceeding, adapted to the nature of the case, in which the citizen has an opportunity to be heard and to defend, enforce, or protect his rights. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of cdue process of law ’ without this; ” and the necessity of notice of the time and place of such hearing is conclusively implied. Staurt v. Palmer, 14 N. Y. 189; Weimer v. Bunbury, 30 Mich. 201; Davidson v. New Orleans, 96 U. S. 97; People ex rel. Butler v. Supervisors of Saginaw Co. 26 Mich. 22; Thomas v. Gain, 35 Mich. 156; State ex rel. Blaisdell v. Billings, 55 Minn. 467; Spencer v. Merchmit, 125 U. S. 355. In Philadelphia v. Miller, 49 Pa. St. 440, Agnew, J., speaking of taxation, says: “Notioe, or at least the means of knowledge, is an essential element of every just proceeding which affects the rights of persons or of property.” Cooley Taxation, 265; Overing v. Foote, 65 N. Y. 263; Murray’s Lessee v. Hoboken L. & I. Co. 18 How. 272.
We have not been referred to any case holding that the constitutional guaranty of “ due process ” of law does not extend to cases of local assessments, and the necessity of notice in such cases is maintained by the clearest implication in Meggett v. Eau Claire, 81 Wis. 331, in which the assessment in question was maintained upon the ground that the proceedings prescribed and taken in that case amounted to notice and “ due process ” of law, and that no other notice *429need be given. The rule as to what would constitute no-' tice was carried quite as far in that case as- we think. it should be, and we do not feel inclined to extend the rule in respect to proceedings so harsh, arbitrary, and summary as these. “We hold, therefore, that the want of any provision for notice, either actual or constructive, of the proceedings in making assessments for sewers, renders the provisions of sec. 96a in the city charter unconstitutional and void, and that the assessment cannot be maintained.
3. The case made by the complaint and evidence shows that the proceedings instituted, and which, it is charged, the defendants intend to carry to a conclusion, will result in casting a cloud upon the title of the plaintiff. The certificate of sale and deed, if issued in the usual manner, would not be void upon their face, but prima, facie valid; and a resort to extrinsic .evidence would be necessary in order to impeach and overthrow them. The doctrine has long £>een settled in this state that 4 court of equity will interfere to’ prevent a cloud upon the plaintiff’s title, when his lands are threatened to be sold upon 4 void tax or assessment. Beaser v. Ashland, 89 Wis. 28, 30, and cases cited.
4. -The record shows that the circuit court, in refusing the relief sought, based its action upon the case of llixon v. Oneida Co. 82 Wis. 515, in which it was sought to restrain the enforcement and collection of taxes for general purposes,, which were, in a general sense, an equitable burden against’ all property liable to taxation, and were to be made a legal charge by proceedings to apportion this equitable burden and it was held necessary to show, in order to’ obtain equitable relief, that the taxes in question were not. only invalid but inequitable. Here there was no antecedent duty or burden, even in the most general sense. The proceeding here; initiated was to create such a charge or duty, and the law under which the common council acted was unconstitutional and void; so no duty or charge whatever was created. . Ini *430the former case there was the power to raise money to meet cértain public necessities and obligations, but in the present case there was no such authority and all that was done "was by the exercise of lawless power. The distinction between the cases is clear. The rule in Hixon v. Oneida Co. is not applicable to assessments which are void for want of jurisdiction on the part of the common council to make them. Beaser v. Ashland, supra.
By the Oourt.— The judgment of the circuit court is reversed, and the case is remanded with directions to grant the relief demanded by the plaintiff’s complaint.
Upon a motion for a rehearing there were separate briefs for the respondents by J. O. Kerwin, attorney, and GKwies IF. Felleer, of counsel, and for the appellant by Byron B. Banders, attorney, and Phillips c& Hides, of counsel.
The motion was denied November 26, 1895. The following opinion was filed December 17, 1895:
The only provision of the city charter of Neenah — sec. 96a (ch. 5, Laws of 1885),— authorizing the common council to make assessments for building sewers having been held unconstitutional, it is insisted, upon a motion for a rehearing, that the assessment in question was authorized by secs. 895-904, E. S., inclusive, in relation to villages, made applicable to cities by sec. 927, E. S., and which authorizes the common council of every city to exercise all the powers conferred on village boards by said sections, and to “proceed in the manner therein prescribed, to lay out, . '. . open, alter, enlarge or extend any drain, canal or sewer, ... as well as by the provisions of their respective charters; and the provisions of the sections aforesaid shall be taken as applicable to such villages and cities.”
The power of village boards under the general law “ to lay out, open, change, widen or extend . . . sewers,” *431and make assessments therefor, is derived from subd. 11, 25, seo. 892, R. S., and from sec. 926, by which the board of trustees of any village incorporated under special act possesses the powers conferred by said sec. 892. No other or additional grant of power to a board of trustees of any village for that purpose was necessary. The general 'scope of the sections now relied on is the exercise of the power of eminent domain by proceedings to condemn lands, as specified in sec. 895, “ whenever the village board shall intend to lay out and open, change, widen or extend auy street, lane, alley, public grounds, square or other place, or to construct and open, alter, enlarge or extend drains, canals or sewers, . . . and it shall be necessary to take private property therefor.” Secs. 896-902, inclusive, provide in detail how the proceedings for such purposes shall be conducted. Sec. 903 provides for the payment of the expenses of the proceeding, “including all damages and costs incurred for the taking of private property and of making any improvement mentioned” in sec. 902, and it declares .that “the village board may, by resolution, levy and assess the whole or any part not less than half of such expenses as a tax upon such property as they shall determine is specially benefited thereby,” and the statute points out the manner, in detail, in which the assessment shall be levied and collected; but the substantive power of village boards to lay out and open, change, widen, or extend sewers, and levy assessments therefor, is not derived from the sections relied on, but from subd. . 11, 25, sec. 892, R. S., and the provisions of the last-named sections have not been made applicable to cities. The sections relied on are subsidiary, and in aid of the substantive power thus granted, and their entire scope is the exercise of the power of eminent domain to acquire such lands as may be necessary for the public uses specified in sec. 902; the expenses, damages, and costs of acquiring such lands to be included with the costs of making the improvement, it hav*432ing been authorized by a separate and independent section. The common council of the city of N'eenah'h.&d. no authority, by any general or special law, to make or levy any assessment for sewers. The city of Nemeth, therefore took, by virtue of secs. 895-904, inclusive, and sec. 927, R. S., no power to make or levy any assessment for such purposes.
For these reasons the motion must be denied.