Rosenberry, J.
Art. I, sec. 5, of the constitution of the state of Wisconsin provides that “The right of trial by jury shall remain inviolate; and shall extend to all cases at law; without regard to the amount in controversy..”
Art. XI, sec. 2, provides: “No municipal corporation shall take private property for public use, against the consent of the owner, without the necessity thereof being first estabr fished by the verdict of a jury.”
On behalf of the relator it is contended that “the verdict of a jury” under sec. 2, art. XI, must be a finding, under the guidance of a judge, as to whether or not there is a public necessity for the taking of the premises described; that the proceeding must be had in a court of competent jurisdiction, presided over by a judge qualified to instruct a jury in matters of law and to pass upon the competency, relevancy, and materiality of all testimony submitted to the jury for consideration; that at the conclusion of the testimony and prior to the verdict'the jurors must receive from a judge qualified to instruct some charge relative to the probative value of the testimony submitted to them and an instruction in matters of law relative to the subject under consideration, after which a verdict must be returned into a court of competent'jurisdiction.
On behalf of the respondents it is contended that sec. 5, art. I, has no application for the reason that a proceeding-under the law in question is not an “action at law” and that the constitutional guaranty of the right to a jury trial does not in any way apply to an eminent domain proceeding. It is further argued on behalf of the respondents that a jury provided for under the provisions of the charter of the city of Milwaukee sufficiently satisfies the requirements of sec. 2, art. XI.
Thus there is presented for determination two questions: (1) What is meant by the term “jury” as used in sec. 2, art. XI? (2) What constitutes a verdict? The material [388]*388parts of the law are to be found in ch. VI of the Milwaukee city charter, 1914 edition, which are for convenience printed in the margin,1 being sections 3, 3o-, 4, and 5. A [389]*389consideration of these provisions discloses that after the initial resolution and the making of a survey and plat defining the lands proposed to be taken, the common council directs [390]*390the city clerk to cause notice to be given “to the owners and occupants of the lands proposed to be taken” that, at a certain time and place, an application will be made “to the circuit court ... of Milwaukee county or to the judge of said court” for the selection of a jury to view the premises, and to determine whether or not it is necessary to take said premises for the purposes specified in said petition or resolution. Provisions are made for the service of this notice and also for its publication. The charter then provides that — ■
“At the time and place fixed for such hearing and upon the presentation of such application or of such resolution and upon proof of the publication and service of the notice herein above required, the said court or the judge thereof shall thereupon make a list of twenty-four reputable freeholders, residents of the city of Milwaukee, but' not residents of the ward in which the premises proposed to be taken may be situated and not interested in the result of such taking.”
[391]*391Provisions are then made for challenges for cause or favor of any of these freeholders and for replacing their names until the list is completed. Thereupon the city of Milwaukee on,the one part and all the owners together on the other part strike names from the list, each side being permitted six strikes. To the twelve “jurors” remaining the court or judge issues a praecipe requiring them to appear before him to serve as a jury in the matter. The jurors thus summoned appear at the time and place named. If any are excused or fail to appear he appoints “disinterested freeholders, not residents of the ward in which the premises proposed to be taken or vacated are situated, in their stead, to be forthwith in like manner summoned and to appear at the time and place fixed by . . . adjournment until twelve jurors shall be obtained.” Thereupon the so-called jurors are sworn to faithfully and honestly discharge the duties imposed upon them and determine the question of necessity [392]*392of the .taking of the property. They are ordered and required, “within thirty days from the date thereof, to view said premises to be specified in such order, and to make return under their hand to the common council whether or not in their judgment it is necessary to take . . . said premises for the purposes specified in such application or resolution.” Sec. 3, ch. VI, as aforesaid.
The jurors thereupon proceed to view the premises and then fix a date for meeting to hear persons interested. A provision is made for the publication and service of such notice. The charter then provides that—
“At the time and place designated in said notice for that purpose, the said jurors shall meet and hear all persons interested in the lands proposed to be taken, and shall hear all evidence which shall be produced before them on the [393]*393subject of the necessity of taking the larid described in the order for the purpose therein stated, and may at the instance of any one or more of their number, summon and examine witnesses upon the same question. . . .”
They are given the power to issue subpoenas and administer oaths and adjourn from day to day. The section provides:
“It shall not be necessary for. said jurors to reduce the evidence produced before them to writing, nor to return the same with their report. Said jurors shall make a report of their proceedings to the common council within the time limited in the precept, which report shall be signed by them respectively, and shall state whether or not, in their judgment, it is necessary to take the premises- in question for the public use proposed in the petition or resolution.” Sec. 4, ch. VI, aforesaid.
[394]*394Following the decision in Day v. Buckingham, 87 Wis. 215, 58 N. W. 254, it has been consistently held by the judges of the circuit courts that in these proceedings “the judge” does not sit as a court. Does a body of men thus brought together by a judge constitute a jury within the meaning of sec. 2, art. XI? Such a group so clearly falls outside of the ordinary or common conception of what constitutes a jury at common law that the burden of establishing that it is a jury falls upon those who assert it. Sec. 13 of art. XIV provides:
“Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.”
It is hardly necessary to make reference to this provision because it is commonly accepted that where technical terms were in use prior to the adoption of the constitution, such terms were used in the constitution in the sense 'in which they were understood at common law.
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Rosenberry, J.
Art. I, sec. 5, of the constitution of the state of Wisconsin provides that “The right of trial by jury shall remain inviolate; and shall extend to all cases at law; without regard to the amount in controversy..”
Art. XI, sec. 2, provides: “No municipal corporation shall take private property for public use, against the consent of the owner, without the necessity thereof being first estabr fished by the verdict of a jury.”
On behalf of the relator it is contended that “the verdict of a jury” under sec. 2, art. XI, must be a finding, under the guidance of a judge, as to whether or not there is a public necessity for the taking of the premises described; that the proceeding must be had in a court of competent jurisdiction, presided over by a judge qualified to instruct a jury in matters of law and to pass upon the competency, relevancy, and materiality of all testimony submitted to the jury for consideration; that at the conclusion of the testimony and prior to the verdict'the jurors must receive from a judge qualified to instruct some charge relative to the probative value of the testimony submitted to them and an instruction in matters of law relative to the subject under consideration, after which a verdict must be returned into a court of competent'jurisdiction.
On behalf of the respondents it is contended that sec. 5, art. I, has no application for the reason that a proceeding-under the law in question is not an “action at law” and that the constitutional guaranty of the right to a jury trial does not in any way apply to an eminent domain proceeding. It is further argued on behalf of the respondents that a jury provided for under the provisions of the charter of the city of Milwaukee sufficiently satisfies the requirements of sec. 2, art. XI.
Thus there is presented for determination two questions: (1) What is meant by the term “jury” as used in sec. 2, art. XI? (2) What constitutes a verdict? The material [388]*388parts of the law are to be found in ch. VI of the Milwaukee city charter, 1914 edition, which are for convenience printed in the margin,1 being sections 3, 3o-, 4, and 5. A [389]*389consideration of these provisions discloses that after the initial resolution and the making of a survey and plat defining the lands proposed to be taken, the common council directs [390]*390the city clerk to cause notice to be given “to the owners and occupants of the lands proposed to be taken” that, at a certain time and place, an application will be made “to the circuit court ... of Milwaukee county or to the judge of said court” for the selection of a jury to view the premises, and to determine whether or not it is necessary to take said premises for the purposes specified in said petition or resolution. Provisions are made for the service of this notice and also for its publication. The charter then provides that — ■
“At the time and place fixed for such hearing and upon the presentation of such application or of such resolution and upon proof of the publication and service of the notice herein above required, the said court or the judge thereof shall thereupon make a list of twenty-four reputable freeholders, residents of the city of Milwaukee, but' not residents of the ward in which the premises proposed to be taken may be situated and not interested in the result of such taking.”
[391]*391Provisions are then made for challenges for cause or favor of any of these freeholders and for replacing their names until the list is completed. Thereupon the city of Milwaukee on,the one part and all the owners together on the other part strike names from the list, each side being permitted six strikes. To the twelve “jurors” remaining the court or judge issues a praecipe requiring them to appear before him to serve as a jury in the matter. The jurors thus summoned appear at the time and place named. If any are excused or fail to appear he appoints “disinterested freeholders, not residents of the ward in which the premises proposed to be taken or vacated are situated, in their stead, to be forthwith in like manner summoned and to appear at the time and place fixed by . . . adjournment until twelve jurors shall be obtained.” Thereupon the so-called jurors are sworn to faithfully and honestly discharge the duties imposed upon them and determine the question of necessity [392]*392of the .taking of the property. They are ordered and required, “within thirty days from the date thereof, to view said premises to be specified in such order, and to make return under their hand to the common council whether or not in their judgment it is necessary to take . . . said premises for the purposes specified in such application or resolution.” Sec. 3, ch. VI, as aforesaid.
The jurors thereupon proceed to view the premises and then fix a date for meeting to hear persons interested. A provision is made for the publication and service of such notice. The charter then provides that—
“At the time and place designated in said notice for that purpose, the said jurors shall meet and hear all persons interested in the lands proposed to be taken, and shall hear all evidence which shall be produced before them on the [393]*393subject of the necessity of taking the larid described in the order for the purpose therein stated, and may at the instance of any one or more of their number, summon and examine witnesses upon the same question. . . .”
They are given the power to issue subpoenas and administer oaths and adjourn from day to day. The section provides:
“It shall not be necessary for. said jurors to reduce the evidence produced before them to writing, nor to return the same with their report. Said jurors shall make a report of their proceedings to the common council within the time limited in the precept, which report shall be signed by them respectively, and shall state whether or not, in their judgment, it is necessary to take the premises- in question for the public use proposed in the petition or resolution.” Sec. 4, ch. VI, aforesaid.
[394]*394Following the decision in Day v. Buckingham, 87 Wis. 215, 58 N. W. 254, it has been consistently held by the judges of the circuit courts that in these proceedings “the judge” does not sit as a court. Does a body of men thus brought together by a judge constitute a jury within the meaning of sec. 2, art. XI? Such a group so clearly falls outside of the ordinary or common conception of what constitutes a jury at common law that the burden of establishing that it is a jury falls upon those who assert it. Sec. 13 of art. XIV provides:
“Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.”
It is hardly necessary to make reference to this provision because it is commonly accepted that where technical terms were in use prior to the adoption of the constitution, such terms were used in the constitution in the sense 'in which they were understood at common law. Counsel for respondents recognize the logic of the situation and urge that “it is a historical fact that the word ‘jury’ was carelessly used around the time of the adoption of the constitution in 1848 in connection with eminent domain matters such as highway openings, and had been very carelessly used by the law-makers during a period of years shortly preceding the adoption of the constitution.”
Reference is made to territorial laws, to sec. 32 of the Racine city charter of August 8, 1848, and to secs. 57 and 62, ch. 16, of the Revised Statutes of 1849. Other early statutes are referred to and we are cited to the following decisions: Lumsden v. Milwaukee, 8 Wis. 485; Hood v. Finch, 8 Wis. 381; Soens v. Racine, 10 Wis. 271; Seifert v. Brooks, 34 Wis. 443; State ex rel. Flint v. Fond du Lac, 42 Wis. 287. In-none of the cases cited, however, was the question presented by the record in this case raised, and in each of the cases referred to it was held that the particular proceedings attacked were for one reason or another unconstitutional and void.
[395]*395In Brandt v. Milwaukee, 69 Wis. 386, 34 N. W. 246, the court held that by ch. 184 of the Laws of 1874 there was vested in the common council of the city of Milwaukee exclusive power to vacate streets and alleys within the city limits. Referring to the charter provisions the court said: “The manner of proceeding for taking land for the use of a street is clearly prescribed, and seems to afford ample and sufficient protection against all abuse of the power.” The question of the constitutionality of the act, however, was not under consideration.
In State ex rel. Andrews v. Oshkosh, 84 Wis. 548, 54 N. W. 1095, the sufficiency of the notice prescribed by the charter of that city was under consideration, and it was held that personal service of the notice satisfied the requirements of sec. 1 of art. XIV of the amendments to the constitution of the United States in regard to due process of law.
It may be conceded that sec. 5 of art. I does not apply to eminent domain proceedings, for they are, as said in State ex rel. Andrews v. Oshkosh, supra, purely statutory and not within the classification of cases at law as that term is used in sec. 5, and we confine ourselves to a consideration of what is meant, by the verdict of a jury as that term is used in sec. 2, art. XI, for that is applicable to any proceeding or action by virtue of which a municipal corporation takes private property for public use. It would be, as said in Norval v. Rice, 2 Wis. 22, a bootless task to trace the origin of trial by jury. See Taswell & Langmead, Eng. Const. History, p. 169.
At this point we call attention to a divergence between the law of this state and that of many states respecting the determination of the question of public necessity. In Chicago & N. W. R. Co. v. Morehouse, 112 Wis. 1, 87 N. W. 849, it was said:
“A principle of the first importance is this: Where the constitution, as in this state, does not reserve to the courts, as an original question, the determination of whether a particular use shall be deemed public, the primary inquiry in that regard is for the legislature; and its judgment, when [396]*396expressed, is deemed to be beyond question by any judicial tribunal if there is any reasonable ground to support it.”
See Newcomb v. Smith, 2 Pin. 131; North Laramie L. Co. v. Hoffman (U. S.), 45 Sup. Ct. Rep. 491.
It was well understood at the time the constitution was adopted, as it is now, that the question of what constitutes a public necessity is primarily one for the legislature. It is apparent, therefore, that the constitutional convention intended by the provisions of sec. 2, art. XI, to confer upon a jury the power to determine the question of necessity in all cases where municipal corporations should take private property for public use and thus to remove it from the legislative field. Having in mind the state of the law at the time of the adoption of the constitution, it is riot conceivable that the framers of that document intended to use the term “jury” other than as applicable to a body of twelve men charged with the duty of finding certain facts under the direction of a court. Had the framers of the constitution intended to provide for a jury of inquest, one quite as well known at the common law as a petit jury, they would have used that term. In this connection we cannot do better than quote from the opinion of the court in Paul v. Detroit, 32 Mich. 108. Referring to a somewhat similar provision in the constitution of Michigan, Judge Campbell in that case said:
“This provision is not found in constitutions generally, and was never known in Michigan until the adoption of the constitution of 1851. Before that, neither jury nor commissioners had any duty to perform except assessing damages, and the prerogative of taking property on their own estimate of its necessity was exercised by legislatures or those persons or corporations whom they allowed to act in the matter.
“The change was made from a well founded belief, founded on experience, that private property was often taken improperly and without any necessity, and that the pretense of public utility was often a cloak for private aggrandizement. Ways were forced through private property to enrich the owners of other property, who were enabled by intrigues and sinister influences to induce municipal bodies to use the [397]*397public authority to subserve their private schemes. The system was abused to the oppression of individuals by corruption and bargaining, and the sacredness of private property, and its immunity from any interference not required by actual public exigencies, ceased to be respected.
“The constitution has changed this by requiring the whole subject to be determined by a jury of freeholders;, so that each case shall be determined by a separate tribunal summoned expressly for the purpose, who must be unanimous in their views before any land can be taken; who must act openly and before all concerned, in hearing and receiving testimony; who cannot listen to private persuasion, and where any attempt to influence them will subject the offender to severe and disgraceful punishment. All these safeguards are implied in the use of the term ‘jury;’ and no action, by laws, or by proceedings under them, can be maintained, if any of these securities are impaired or disregarded.”
While under the provisions of the Milwaukee charter a body of twelve men is provided, they do not, under the provisions of that instrument, constitute a jury within the meaning of that term as used in the constitution., The judge is made use of for the purpose of selecting the individuals who shall compose the body. As has been uniformly held by the circuit court for Milwaukee county, the court has no power under the act to direct the deliberations of the jury. After they are impaneled they proceed largely upon their own motion, by a view of the premises, to determine the question of necessity. No record of their proceedings is made. When their determination is filed it rests upon no record, and cannot be reviewed by certiorari or otherwise because there is nothing to review. While it has the form of a jury it is in fact an inquisitorial body. From the earliest time juries have acted as an arm of the court.' While there can be no doubt that the legislature might delegate its authority were it not for the constitutional restrictions, it must provide for the taking of private property by municipalities by verdict of a jury. We have no difficulty in arriving at the conclusion that the body provided for under the provisions of the charter of the city of Milwaukee, to which reference has been made, is not-a jury within the meaning of that term as used in sec. 2 of art. XI.
[398]*398Having arrived at this conclusion it is not necessary for us to discuss or specially consider what is meant by a verdict. Reference, however, is made to the following cases: Shenners v. West Side St. R. Co. 78 Wis. 382, 47 N. W. 622; McBean v. State, 83 Wis. 206, 53 N. W. 497; James v. State, 55 Miss. 57; Hawley v. Barker, 5 Colo. 118; Simmons v. Hamilton, 56 Cal. 493; Davis v. Delaware Tp. 41 N. J. L. 55. The sections, of the charter referred to do not provide for the taking of a verdict of a jury “as to the question of public necessity” and are therefore in contravention of the constitutional provision.
We do not hold that there must be a jury trial in the sense in which that term was used at common law. It is quite clear that the process by which the power of eminent domain is exercised is under our law a special proceeding. The requirement of the constitution is that there shall be a verdict of a jury and not a jury trial. We call attention to this in order that there may be no misunderstanding as to the extent of the holding in this case.
We are met by the argument on behalf of the respondents that under the doctrine of Dean v. Borchsenius, 30 Wis. 236, “the uninterrupted practice of a government prevailing through a long series of years and the acquiescence of all its departments, legislative, executive, and judicial, sometimes become imperative even on constitutional questions.” Citing also State ex rel. Hudd v. Timme, 54 Wis. 319, 11 N. W. 785; State ex rel. Hessey v. Daniels, 143 Wis. 649, 128 N. W. 565; State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961; State ex rel. Postel v. Marcus, 160 Wis. 354, 152 N. W. 419.
The difficulty with the argument, however, is that this provision has not been interpreted uniformly, as contended by the respondents. While it is true no case has been brought into court questioning the validity of the provisions of the charter of the city of Milwaukee under consideration here, a consideration of the law of the state indicates that there has been no uniform interpretation of the provision such as is contended for by the respondents. In any event, the [399]*399doctrine of practical construction does not apply where there is no ambiguity. State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 151 Wis. 520, 139 N. W. 396.
In the consideration of this case we have been greatly aided by the careful and thorough briefs filed by counsel upon both sides. We commend counsel particularly' for providing us with a careful and thorough legislative history of the subject.
By the Court. — Let the writ issue.