I concur with my brother Campbell in holding that the recorder’s court got no jurisdiction of the proceedings in this case. I concur also in holding, as we have on many previous occasions held, that by the constitution the jury must determine, not merely that if a certain street is to be made in a certain locality, it will be necessary to take the particular property for it, but they must determine whether the proposed street is necessary for the public use. And as the oath which under this charter the jury are to take, is merely “ to discharge the duties imposed on them by this title” (title VI. of charter) “ faithfully and impartially, and according to the best of their abilities,” such a requirement must be found in the title of the charter referred to, or the oath would not comply with the constitutional requirement, and the finding or verdict would not be valid, though it did affirmatively find, as in the present cases, that the street was necessary. But, as I read the provisions of the title of the charter in question, they do just as clearly require the jury to pass upon the necessity of the street or other public improvement, for which private property is by the council proposed to be taken, as the constitution itself does.
*513Section 9 provides for swearing the jury in the mode already stated, and requires the court to instruct them as to their duties. Section 10 requires them to view the premises. By section 11 “ said jury shall then ascertain the necessity for using the property intended to be taken, if it be intended to take any, for such improvements ” (the just damages, etc.) And similar language is used in the 2d section, in reference to the resolution for calling a jury, and the purpose for which it is to be called.
But it is said that this language does not expressly require the jury to ascertain or determine the necessity of the street or improvement, and may have full effect without imposing any such duty, and cannot be fairly held to require this of the jury, without going beyond the plain, natural meaning of the words. The words, however, are the same as those used in the constitutional provision, which we have uniformly held to require the finding in question; and we have uniformly held, before as well as since the passage of this charter, that these words in the constitution did require the jury to determine the necessity of the street or improvement. The language of the constitution is no more clear and express than the provision of this act; but we found no difficulty in saying it required the finding in question; because, without this, the provision would be idle and senseless: would not the law be equally so ? By what rule of law or logic are we to hold, when the legislature, in speaking of the same subject matter, and in the same language as the constitution, have meant something different from the constitutional meaning? Is it because the legislature did not go on and explain- what the constitution and this court has taken it for granted needed no explanation to express the meaning? And after we had judicially said to the legislature what was the fair meaning of the language used in the constitution, and they have adopted the same language applicable to the same subject, supposing its meaning to be thus settled, may they not justly conclude that the difficulty of framing an act which *514this court will uphold as constitutional, is inexplicable, as well as insuperable?
For myself I must hold it to be a safe and sound rule of interpretation, that, even when a statute is susceptible of two different meanings, one of which is in harmony, and the other in conflict with the constitution, the legislature shall be presumed to have intended to use the language in a constitutional sense, rather than in that which would violate it. When an act of the legislature is charged with violating the constitution, it is entitled at least to the same presumption of innocence, as an individual on trial for a crime.
The only plausible reason assigned for the inference that the legislature did not use the language in the constitutional sense, is, that the council are by the charter (Sec. 2, Art. VI.,) required, as the very initiation of the proceedings for taking private property for a street or other public improvement, to declare by resolution their intention of taking it, and to describe the property intended to be taken, and that they will, on a day named in the resolution, “ apply to the recorder’s court for the drawing of a jury to ascertain the necessity for using the property intended to be taken, if it be intended to take any, for such improvement.”
It is urged that the passing of this resolution must be understood as the final determination to take the property, and of the necessity of taking it, and would naturally be understood as dispensing with any finding of the jury upon the point. I do not so understand it; and to interpret it in this way seems to me to be just as absurd, and for precisely the same reason, as to determine such to be the meaning of the constitutional provision, viz: it would render the provision, requiring the jury to ascertain the necessity of the taking, senseless, without a purpose, and simply absurd.
I look upon the provision requiring the passage of this resolution as merely an initiatory step, to set proceedings *515in motion, as in effect intended as a mere proposition, in a properly authenticated form, to take the land for the purpose indicated. And, as such proceedings ought not to be instituted, and parties put to the expense of protecting or looking to their rights, unless the council first by a vote indicate their wish to this effect, the resolution is a very proper mode of indicating the corporate will for taking such proceedings. It is, in fact, an additional safeguard to individual rights; since it requires the vote of a majority of the council before such proceedings can even be attempted. And I confess my utter inability to discover any plausible ground for the opposite view. But if the language in the abstract would be barely susceptible of the meaning which would render it unconstitutional, this would be no justification for holding the law unconstitutional, if, when considered with reference to the subject matter, and any reasonable object of inserting the provision, a constitutional intent can be inferred. Any less liberal rule of construction would invalidate a very large portion of our statutes, and convert the courts into mere schools of verbal criticism.
I cannot in this case concur in holding that the constitutional validity of the provision in question is at all doubtful. Upon every other point I concur with my brother Campbell.