(dissenting). In 1902, proceedings were instituted by the proper authorities of the city of Detroit for opening Hancock avenue from Fourteenth avenue to Grand River avenue. A jury was impaneled and on September 13, 1902, they rendered a verdict finding that the *591necessity existed, and assessing damages to those whose lands were taken for the street. The court confirmed the verdict, finding that the necessity existed for opening the street, but set it aside as to the assessment of the damages. No further proceedings were taken until in January, 1906, when another jury was impaneled to assess damages. The jury duly rendered a verdict which was afterwards, on January 19, 1906, confirmed by the court.
On May 29, 1906, the common council, by appropriate resolution, fixed and determined the property benefited by said opening and assessed upon said property $8,766.67, and that the balance of said award should be paid by the city. On June 26th an assessment roll was presented to the council and duly confirmed/ A protest was afterwards entered before the .common council against the city’s action, which was denied. Complainant, whose land was assessed, promptly thereafter filed this bill in chancery to set aside the verdict and judgment of the recorder’s court on the ground that it was absolutely void. The case was heard upon pleadings and proofs taken in open court, and a decree entered for the complainant.
1. These condemnation proceedings were taken under chapter 90, 1 Comp. Laws. Sections 3898 and 3399 are the ones before us for construction. 'Section 3398 provides that the jury shall be sworn to determine two facts, —(1) whether a public necessity for the improvement exists ; and (2) if they so find, to ascertain and award the just compensation to the owners of the land.
Section 3399 reads as follows:
“ The jury shall determine in their verdict the necessity for the proposed improvement and for taking such private property for the use or benefit of the public for the proposed, improvement and in case they find such necessity exists they shall award to the owners of such property and others interested therein such compensation therefor as they shall deem just.”
Can two juries be summoned to determine the two questions provided in the statute ? To hold that the statute so provides would do violence to plain language. The stat*592ute provides for one jury to determine two questions. If the necessity is found to exist, the jury must determine the value of the land then, and not at a time in the past or future. Years afterwards the land may have appreciated or depreciated in value. As the learned circuit judge well said:
“If the public authorities, having obtained a verdict as to a necessity, can wait three years before having an assessment of value, they can as well wait thirty years.”
What is a necessity at one time may not be a necessity years afterwards. The statute contemplates one proceeding at one and the same time to determine both questions. Trials cannot thus be conducted in piecemeal. If there is error upon the trial the entire case must be retried. It follows that the proceedings are absolutely void.
The case of City of Detroit v. Beecher, 75 Mich. 454 (4 L. R. A. 813), affords, in my judgment, no justification for the proceedings in this. I have examined the briefs in that case and find that no such question was raised. The statute had been fully complied with in submitting both questions, namely, the necessity and the value, to the same jury. The statute was attacked as unconstitutional, and numerous objections were raised to the proceedings. It was also alleged as error on the part of the court to instruct the jury that they could award only nominal damages for three pieces of land, which formed a private alley. This was the only error in the case, and it was affirmed in all other respects and a new appraisement ordered as to those parcels. For aught that appears in the record, briefs, or opinion of the court, that course may have been assented to by the respondents. Be that as it may, I do not think it can be taken as authority for holding that one jury may be summoned to ascertain the necessity, and, years afterwards, when conditions in cities are quite sure to have changed, another may be summoned to determine the value of the land taken.
2. It is, however, urged that the validity of the record*593er’s court proceedings cannot be attacked in a collateral chancery proceeding, and that the complainant’s remedy was by appearing before the reviewing authorities to have his assessment corrected. Complainant was not a party to the condemnation proceedings, and there was nothing then to indicate that he ever would become interested therein. To deprive him of some opportunity to appear before some tribunal would be to deprive him of his property without due process of law. The board of review is not clothed with authority to set aside the judgment and decrees of courts of record. It is not an appellate court to sit in judgment upon the proceedings of the constitutional courts of the State. They have jurisdiction to correct assessments and review the action of the assessors. There their jurisdiction begins and ends. The judgment of the recorder’s court was void upon its face. It is not a mere irregularity which ,may be ignored where the taxpayer has suffered no injustice. Complainant acted with due promptness in applying to the court to prevent a cloud upon his title. A chancery court has jurisdiction in such cases. Steckert v. City of East Saginaw, 22 Mich. 104; Twiss v. City of Port Huron, 63 Mich. 528; Beider Manfg. Co. v. City of Muskegon, 63 Mich. 44.
I do not think that it is settled by the case of Borgman v. City of Detroit, 102 Mich. 261, that a proceeding void upon its face is conclusive upon the taxpayers who were not parties to the litigation. The sole question in that case was whether the parties in the condemnation proceedings might waive a jury of 12 men and proceed with a jury of 11. In all other yespects the statute was fully complied with, and the same jury determined both questions.
In Scotten v. City of Detroit, 106 Mich. 564, the only error alleged was that the mayor did not sign the resolution adopted by the common council, — a technical error, and one which did not at all affect the merits of the case.
The decree should be affirmed, with costs.
Blair, J., concurred with Grant, O. J.