Proceedings were taken to continue Kent street, in the city of Grand Rapids, through certain private property, and to assess the cost of the same upon property benefited by *506the alleged improvement. After one jury had reported, the report was set aside, and a further jury was summoned, upon whose final action, as affirmed by the recorder’s court, the present appeals are brought, involving questions of regularity and of jurisdiction. The steps complained of were taken under title six of the amended charter of G-rand Rapids, as revised in 1871. — Laws of 1871, Vol. p. 888, ef seq.
The course to be taken is quite minutely set forth, and, inasmuch as the proceedings are special and adverse, whereby private property is taken against the will of the owner, the settled principles of law require strict compliance with every provision which is not so purely formal as in no way to bear upon the protection or rights of the parties to be affected. And, inasmuch as by the same course of proceedings, the value of the land is determined, and the cost of the improvement is levied against the parties to be charged, the inquiry involves not only those principles governing the assumption of private property for public use, but also those bearing on assessments to apportion public burdens on the persons or property liable to pay them. The' questions are more complex, and the difficulties ' are multiplied by this condition of things.
When an application has been made in due form of law to the recorder’s court, and legal notice has been given to the persons entitled to be heard, the order of the court, setting aside the report of a jury, does not under the language of the charter make it necessary to begin over again from the beginning, but allows an application for a new jury, and declares that “it shall not be necessary, on such or any subsequent application, to give notice thereof, or of the original resolution upon which the first application was based.”
It follows, of course, that the consequences of any legal error before the appointment of the first jury, must attach to and affect all subsequent steps in the proceeding.
*507It will be necessary, therefore, to state briefly the steps to be taken in the beginning. These 'are:
First. A resolution of the common council declaring the necessity of the improvement, and describing that and the property to be taken, and declaring that they will, on a day named, apply to the recorder’s court for a jury “to ascertain the necessity for using the property intended to be taken, if it be intended to take any, for such improvement, to ascertain the just damages which any person may be entitled to if such intended improvement be made, and to apportion and assess such damages and compensation to and upon all lots, premises and subdivisions thereof which will be benefited by such improvement.” — Sec. 2.
Second. Notice of such application by causing a certified copy “to be published for four successive weeks in some daily newspaper published in said city.”
Third. Notice to be served on each owner by the marshal, personally or at his residence, if in the city, or, if not, then on the occupants if known and residents, and if unknown, then by posting on the premises. The marshal is required to “make return of his doings, and of the manner of giving said notice, as soon as practicable ” after the passage of the resolutions, “tvhich return shall be made to the recorder’s court at least six days before the day appointed in said resolution for the hearing of said application.” —Sec. S.
Fourth. On that day, or subsequently, on filing an affidavit of the publication of the resolution, the marshal is to “ attend said court and write down the names of twenty-four disinterested fre'eholders residing in said city, and who .shall be approved by the court as such disinterested freeholders and residents and qualified to serve.”
Fifth. The court issues to the marshal a summons for the jurors to appear. at a time not less than seven days thereafter, and the marshal is to serve it “at least three Fays before the return day thereof” and make return as on .a venire.
*508Sixth. Provision is made for drawing from that number, and for talesmen when necessary. They are to be “sworn to discharge the duties imposed on, them by this title, faithfully, impartially, and according to the best of their abilities.” The court instructs them, and they then proceed in their work.
These are the chief outlines of the procedure. The statute directs the supreme court to dispose of these appeals with the least 'practicable delay; and inasmuch as there may be errors which vitiate the entire proceedings, and others which could be rectified by a new inquest, it becomes necessary to dispose of substantial and jurisdictional questions, and not to confine our attention entirely to those of less consequence.
As the right to assess the cost of the improvement depends directly on the legality of the steps to condemn the land, all questions relating to that belong to each of the appeals. And the first question naturally presented refers to the jurisdiction of the recorder’s court. This cannot attach without legal proof of legal notice to the parties entitled to be heard.
The statute is positive that the marshal shall “make return of his doings, and of the manner of giving said notice, as soon as practicable after the passage thereof” [that is, of the resolution], “ which return shall be made to the recorder’s court, at least six days before the day appointed in said resolution for the hearing of said application.” A distinction is also taken between the personal notice, which is to be given by the marshal, and the advertised notice, which is to be given by the common council, and not by the marshal. — See. 8. This distinction becomes important under the objections presented on the record.
The choice of the daily paper in which the resolution is to be published must necessarily be made by those who are appointed to give that notice. It is always a matter of importance to select a paper which will be adapted to give the widest currency to such a notice, which concerns *509the whole city, inasmuch as the city may become liable to pay at least a part of the damages. — See. 12. There is only one way in which a common council can act, and that is by written resolution. We think the paper should have been designated; and if it had been, the minor question whether it sufficiently appeared the paper in which the notice was printed was within the statute, could not very well have arisen. The printed notice was not authorized, and was invalid.
We think, also, that as the return is required to be made by the marshal at least six days before the day appointed for hearing, the law precludes the right to give any notice which should be included in his return, unless it be given before that time.' There are no circumstances which could anthorize a notice later than six clear days before the day of hearing. Such language is imperative, and the service is necessary to give jurisdiction. — Sallee v. Ireland, 9 Mich. R., 154.
The marshal returns that a part of the premises being unoccupied, and the owner a non-resident, he posted a notice on that lot upon the 10th day of October, which was less than six days before the 14th (the day of hearing), and this notice was therefore void.
The recorder’s court got no jurisdiction, and all the proceedings therein were void from the beginning.
But there were some other more vital questions raised, which we feel bound to notice, under the statute, as they stand directly in the way of any further proceeding under the amended charter, if they are well taken.
It is claimed that the charter is framed so ambiguously that the jury are not required to determine upon the necessity of the proposed improvement, but only on the necessity of taking the land for the improvement, provided the improvement is made as designated. It was held in People ex rel. Bingham v. Village of Brighton, 20 Mich. R., 57, that the jury is not called upon merely to determine whether a particular piece of land is necessary to an im*510provement already designated by some one else, for that would be an idle ceremony, and the fact could be determined by measurement, and involve no important discretion. The object of the constitutional provision is to prevent the taking of private property for any purpose which is not shown to the satisfaction of a jury to be demanded by public convenience, or, to speak more accurately, by necessity.
The determination of this necessity has sometimes been allowed to be made by legislative or other public agencies. But our constitution has taken away this power from all bodies except those indicated; and in cases like the present, the fact of necessity must be found by the jury. The common council, instead of acting judicially or finally on the policy of opening a street over private property which they cannot obtain without adverse proceedings, become no more than petitioners, and the decision rests with the jury, and not with the city. — Same case.
Where the constitution is so imperative, no legislation can .be maintained which does not plainly require this question to be left to the jury. Their finding, without such a requirement, is not within their oaths, and is extrajudicial. The oath is the measure and limit of their legal action.— See McClary v. Hartwell, 25 Mich. R., 139. And it is impossible to say that property has been taken by due process of law, unless the statutes provide expressly for every constitutional safeguard framed to govern such action. Cases have frequently arisen where the verdicts of juries have shown that they have had no such rule before them. — See Mansfield, Coldwater & Lake Mich. R. R. Co. v. Clark, 23 Mich. R., 519; Grand Rapids, Newaygo & Lake Shore R. R. Co. v. Van Driele, 24 Mich. R., 409.
There is very serious doubt whether the repeated provisions leaving it to the jury to determine “the necessity for using the property intended to be taken for such improvement,” do not most naturally convey the idea that they are not to pass upon the necessity of the improvement itself. Their oath is not specific, but merely swears them *511generally, to “ discharge the duties imposed on them by this title,” and is not in any way calculated to help them in ascertaining their duties. As there is another defect which will require the statute to be amended, we content ourselves with pointing out the peculiar character of these provisions, that they may at the same time receive proper attention.
It is lastly objected that the statute is void as not providing for a lawful assessment of damages.
The jury is required by section 5 to be obtained by summoning twenty-four disinterested freeholders residing in the city. The damages are to be apportioned upon property benefited, and, if no property is benefited to the full amount, the remainder is to be a city charge, assessed on all property, like other taxes.
The law before us does not contemplate or authorize a separate district to be defined in advance, for purposes of assessment. This is the proper, if not the necessary course where the tax is not general, but it could not be resorted to, in harmony with the general purposes of this charter, without placing the assessment of damages and benefits in different hands to be managed separately. The one may not equal the other, and the difference, if any, must be charged to some other than the property specially benefited; and here it is laid on the whole city. — See Hoyt v. East Saginaw, 19 Mich. R., 39, and cases cited; People v. Salem, 20 Mich. R., 452. The charter does not proceed on the usual theory of special assessments.
As there is no limitation of districts, and the jurors are only required to be freeholders resident within the city, it is impossible to determine, in advance of their verdict, whether they have been disinterested or not. They cannot fail to have a direct interest in so charging the benefits as to avoid reaching their own freeholds, or the freeholds of their relatives, within the degrees which would affect their competency as jurymen. They have a direct interest in finding that there is specific property benefited to the full extent of the cost of the improvement; for, if not, they will *512all be subject to direct taxation, to raise the balance. It is absolutely impossible, under this charter, to find a freeholder who can be declared legally disinterested for the performance of these duties.
The statute, therefore, furnishes no means for determining the matters which it purports to refer to a disinterested jury; and the proceedings are entirely void throughout, and are not capable of amendment by any future action. Until the charter is changed, the improvement cannot lawfully be made.
Judgment must be entered on each appeal, for quashing the entire proceedings, with costs.
Cooley, J., and Graves, Ch. J., concurred.