one overseer of highways for each highway district, whose powers and duties shall be prescribed by law. A ORGANIZED TOWNSHIP: Townships, in which electors can lawfully vote and whose supervisors conjointly may exercise the legislative and administrative powers of the corporation, are necessary subdivisions of the county. county cannot be organized without the existence of townships, and there must be more than one township.-People v. Maynard, 15/463. A new township, organized without special conditions, becomes a "township" within the meaning of the constitution and laws, clothed with the same rights and powers and subject to the same duties as belong to new townships generally. It becomes severed from the school district organization in which it was formerly embraced.-People v. Ryan, 19/203. There is nothing to indicate that it was intended to embrace organized and incorporated cities and villages within the term "organized townships."-White v. Supervisors, 105 / 612. ELECTIONS: The townships in which elections are held must be organized townships. People v. Maynard, 15 / 463. TOWNSHIP OFFICERS' FUNCTIONS: The functions of township officers, who are continued by constitutional enactment, are as clearly within the contemplation and protection of the constitution as are the officers themselves, and the legislature has no more power to deprive those officers of their authority and confer that authority upon officers not of local selection, than it has to abolish the offices.-Davies v. Supervisors, 89/295. SUPERVISORS: These officers, who may constitute a county board, are necessary to the organization of a county.-People v. Maynard, 15/463. The effect of this section, construed with Sec. 7 of Art. x, is to limit the power of the legislature to give organized townships more than one representative on the board of supervisors, and imposes the duty to give cities some representation therein.-Att'y Gen. v. Preston, 56/177. For the distinction between a supervisor and an ex officio member of the board of supervisors, see the case last cited and Holden v. Supervisors, 77 / 202. HIGHWAY OFFICERS: Highway commissioners are constitutional officers. -Burnham v. Township, 46/555. The powers of highway commissioners and overseers are subject to legislative modification, but no legislation can abolish the offices or take away all their functions. The highways in each district must, to some extent at least, be subject to an overseer elected by the people. --Hubbard v. Twp. Board, 25 / 153. ARTICLE XIV. FINANCE AND TAXATION. (6) SEC. 9. The State shall not be a party to, nor inter- Internal imested in, any work or internal improvement, nor engaged in provement. carrying on any such work except in the improvement of or aiding in the improvement of the public wagon roads and in the expenditure of grants to the State of land or other property: Provided, however, That the legislature of the State, by appropriate legislation, may authorize the city of Grand Rapids to issue its bonds for the improvement of Grand River. Am. 1893, 1905. The constitution does not permit the state either to contract a debt for a public improvement, or to expend in its construction anything but the grants which it has received for the purpose; and any legislation which attempts any other expenditure must be directly within the constitutional inhibition and therefore void.-Ryerson v. Utley, 16/269; Hubbard v. Twp. Bd., 25/153. The question whether the work is carried on by the state in no way depends on the sources from which the money is drawn to pay for it. It is a state work if directed, planned and executed by state agency.-Hubbard v. Twp. Board, 25/153. The state may authorize the improvement of its natural highways by water, but it is precluded by this section of the constitution from doing so itself.-Watts v. Tittabawassee Boom Co.. 52/203, 211; Manistee Riv. Imp. Co. v. Sands, 53/593. Nor can the legislature impose a tax upon a particular locality for internal improvements.-Anderson V. Hill, 54/478; Sparrow v. Land Com'r, 56/567; Wilcox v. Paddock, 65/23. 2 Property, how taken. Private prop erty, how taken. ARTICLE XV. CORPORATIONS. (7) SEC. 9. The property of no person shall be taken by any corporation for public use, without compensation being first made or secured, in such manner as may be prescribed by law. Woodbridge v. Detroit, 8/274; Gd. Rapids v. Powers, 89/94; Tuller v. (8) SEC. 15. Private property shall not be taken for public improvements in cities and villages without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders and actually paid or secured in the manner provided by law. Woodbridge v. Detroit, 8/274; Gd. Rapids v. Powers, 89/94; Tuller v. Detroit, 977 597. See citations under section 9 infra. Private prop erty for public use. ARTICLE XVIII. MISCELLANEOUS PROVISIONS. (9) SEC. 2. When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law: Provided, The foregoing provisions shall in no case be construed to apply to the action of commissioners of highways in the official discharge of their duty as highway commissioners. Am. 1860. CONDEMNATION PROCEEDINGS: Proceedings to condemn land for the public use are not according to the course of the common law, but more in the nature of inquisitions.-Kundinger v. Saginaw, 59/355. In these proceedings every material requirement of law must be strictly observed. People v. Brighton, 20/71; Specht v. Detroit, 20/172; Power's Appeal, 29/504; Kroop v. Forman, 31/144; T., A. A. & N. Ry. Co. v. Munson, 57/42; Kinnie v. Bare, 68/625. These proceedings are necessary only where private property is taken for public use without the owner's consent and not when the owner actually gives or dedicates his property to the public for their use, or when, from his long acquiescence in the use of it by the public, a donation or dedication is presumed by law.-Bumpus v. Miller, et al., 4/159. PRIVATE PROPERTY: The term "private property" was not intended to include money.-Williams v. Mayor, 2/560. The property of a railroad_company may be taken, whenever the necessity of the public requires it.-Grand Rapids v. Bennett, 106/533-4; Railway Co. v. Railroad Co.. 35/265; Railroad Co. v. Railroad Co., 62 / 564. But the property of a railroad company is as sacredly guarded and as much beyond the reach or power of the legislature as is the property of an individual.-G. R., N. & L. S. R. R. Co. v. G. R. & I. R. R. Co., 35/265; People v. L. S. & M. S. Ry. Co., 52/277; People v. Ry. Co., 79/471. The grading of a street in such a manner as to raise an embankment and thereby bury a portion of a dwelling house is a taking of private property.-Vanderlip v. Grand Rapids, 73 / 522. Also flowing lands against the owner's consent.-G. R. B. Co. v. Jarvis, 30/308. But the placing of telegraph poles along a public highway is not an additional servitude for which compensation must be made.-People v. Eaton, 100 / 208. PUBLIC USE: Private property can be taken only for a public use in fact. -M., C. & L. M. R. R. Co. v. Clark, 23 / 519, 524; G. R., N. & L. S. R. R. Co. v. Van Driele, 24/409; East Saginaw v. St. C. R. R. Co. v. Benham, 28/459; Paul v. Detroit, 32/108; Ryerson v. Brown, 35/333; Morgan's Appeal, 39/675; Board of Health v. Van Hoesen, 87/533. See also People v. Salem, 20/452. Land can be taken, under the power of eminent domain, for a legitimate public purpose, even though a private purpose will be thereby incidentally subserved; but in such case the taking must be limited to the public necessity.-Berrien Springs Water Power Co. v. Judge, 133 / 48. Private property can be taken by the state only for state purposes and not for the United States. People v. Trombley, 23 / 471. The construction of highways is a public use for which private property may be taken.-People v. Kimball, 4/95; Truax v. Sterling, 74/160. Also the construction of railroads. Swan v. Williams, 2/427; People v. Salem, 20/452, 512. But not the flowing of lands for water power mills.-Ryerson v. Brown, 35 / 333. NECESSITY: The jury must determine the necessity for taking the property. People v. Brighton, 20/57; Horton v. Grand Haven, 24 / 465; McClary v. Hartwell, 24/139; Sheldon v. Kalamazoo, 24/383; Arnold v. Decatur, 29/77; Power's Appeal, 29/504; Paul v. Detroit, 32/108; Ayres v. Richards, 38/214; Bowler v. Drain Com'r, 47 / 154; Grand Rapids v. G. R. & I. R. R. Co., 58/641; Kundinger v. Saginaw, 59/355; Pearsall v. Supervisors, 71/438; Detroit v. Beecher, 75/454; Owosso v. Richfield, 80 / 328; Hester v. Chambers, 84/562; Com'rs of Parks v. Moesta, 91/151. It must be a public necessity.-M., C. & L. M. R. R. Co. v. Clark, 23/519; G. R., N. & L. S. R. R. Co. v. Van Driele, 24 / 409. And a real necessity.-Detroit v. Daly, 68/503. The object of the 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. Power's Appeal, 29/504. The parties have a full right to be heard on the question of necessity.-Paul v. Detroit, 32 / 108. For a definition of "necessity," see Detroit v. Beecher, 75/468. COMPENSATION: The compensation must be determined by the jury, as well as the necessity. See the first cases cited under "Necessity." Compensation must be made in money, for that is the only fixed standard or representation of value known to the law.-Williams v. Mayor, 2/560. The owner of land taken for a street is entitled to its full market value.-Chaffee's Appeal, 56/244; Detroit v. Daly, 68/512; Detroit v. Chaffee, 68 / 635; Park Com'rs v. Moesta, 91/151. Compensation for, rather than the value of land_taken is what the constitution contemplates.-Grand Rapids v. G. R. & I. R. R. Co., 58/641, 648. Nothing is just compensation which does not make good all the pecuniary loss or outlay occasioned to the owner by the appropriation of his property.-C. & G. T. Ry. Co. v. Hough, 61/507. There is no case where the actual taking of private property is damnum absque injuria. Compensation is a constitutional condition of such taking and it can be lawful only when the necessity of the taking as well as the measure of the compensation has been determined in a legal way.-Sheldon v. Kalamazoo, 24/383; Detroit v. Beekman, 34/127; M., H. & O. R. R. Co. v. Probate Judge. 53 / 217. As to the necessity of making compensation, see also Coleman v. F. & P. M. Ry. Co., 64/164; McKay v. Doty, 63 / 583; Chaffee's Appeal, 56/262; Ryan v. Brown, 18/196. JURY OR COMMISSIONERS: This contemplates a jury of twelve.-Campau v. Detroit, 14/276; McRae v. R. R. Co., 93 / 402. Must be freeholders.Owosso v. Richfield, 80 / 328. Must be impartial and disinterested. Kundinger v. Saginaw, 59/355; Hester v. Chambers, 84/562. As to additional qualifications that may be imposed by the legislature, see Saginaw v. Campau, 102 / 594. But a majority of commissioners may determine the necessity for taking the property.-Serrell v. Probate Judge, 107/236. The jury are judges of both law and fact.-Railway Co. v. Dunlap, 47/456. Distinct parcels owned by different persons may be condemned by the same jury.-Kundinger v. Saginaw, 59/355. A new jury may be impaneled upon a disagreement.-Kress v. Hammond, 92/372. The right to have a jury in condemnation proceedings is a substantial right that ought not to be prevented by any mere technicalities.-Pt. H. & N. W. Ry. Co. v. Callanan, 61/12, 14; Grand Rapids v. Perkins, 78/93, 96. As to waiver of jury, see Pt. H. & N. W. Ry. Co. v. Callanan, 61 / 14; Borgman v. Detroit, 102 / 261, 263. (10) SEC. 4. No navigable stream in this State shall be Navigable either bridged or dammed without authority from the board streams. of supervisors of the proper county under the provisions of law. No such law shall prejudice the right of individuals to the free navigation of such streams, or preclude the State from the further improvement of the navigation of such streams. This provision refers only to streams wholly within the state and relates only to the internal police of the state.-Ryan v. Brown, 18/211. DAMS: The board of supervisors may, in the manner fixed by law, permit dams to be built according to such plans as they approve; and the public use is limited by such conditions and cannot be described as a right to the use of the water in its natural flow.-Wood v. Rice, 24/423. See stone v. Lumber Co., 59/24. The constitutional inhibition against prejudicing "the right of individuals to the free navigation of the stream" does not mean that every such dam must be provided with a lock for the passage of vessels, but only that the streams, so far as navigable, shall remain a public highway.Valentine v. Berrien Springs Water Power Co., 128 / 280. Private property. Private roads. BRIDGES: The assent of the board is necessary for the construction of a toll bridge over a navigable stream, and the board is also the competent authority to fix the tolls.-Bridge Co. v. Prange, 35/400. The authority conferred upon boards of supervisors to regulate the bridging of navigable streams is a trust that must be executed by themselves; they cannot delegate it to others.-Maxwell v. Bridge Co., 41/453. See Maxwell v. Bridge Co., 46/278; Stofflet v. Estes, 104/213. For liability for negligence, see Corning v. Saginaw, 116/76. PROCEEDINGS BY BOARD: The consent of the board is not necessary in the case of mere private streams.-Fox v. Holcomb, 34/298. Nor in the case of streams which, in their natural condition, are not adapted to any valuable boat or vessel navigation.-Shepard v. Gates, 50/495. Boards of supervisors have jurisdiction to act only when the petitions correspond with the requirements of law. Maxwell v. Bridge Co., 41/453. See, also, as to the essentials of the petition, Powers v. Irish, 23/429; Fox v. Holcomb, 34 / 298. (11) SEC. 14. The property of no person shall be taken for public use without just compensation therefor. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damages to be sustained by the opening thereof shall be first determined by a jury of freeholders; and such amount, together with the expenses of proceedings, shall be paid by the person or persons to be benefited. PRIVATE ROADS: This is the only provision in the constitution that requires private benefits to be made the test of necessity and compels private property to bear the whole burden of a way.-Paul v. Detroit, 32/112. Nothing but a clear practical necessity can, under our constitution, justify the taking of private property of one person to be used as a private road by another. It is not to be taken for mere convenience. The taking is justifiable only where no other way of access to the lands of the applicant can be found. Its use must be only commensurate with the necessity of the applicants and confined to them and the owner.-Ayres v. Richards, 38/214, 216. A jury is indispensable in cases of private roads.-Ayres v. Richards, 38/217. As to a "private way," see Ayres v. Richards, 41 / 680. TITLE II-GENERAL HIGHWAY LAW. Improvement of public highvate roads. An Act to revise and consolidate the laws relating to the establishment, opening, improvement and maintenance of highways and private roads, and the building, repairing and preservation of bridges within this State. (12) [P. A. 1881, Act 243 as amended.] The People of the State of Michigan enact: § 4035. That public highways and private roads ways and pri- may be established, opened, improved and maintained within this State under the provisions of this act, and the townships, cities and villages of this State shall possess the authority herein prescribed for the building, repairing and preservation of bridges. HIGHWAYS: Ways must be either public or private; there is no intermediate species of way for any purpose of passage.-Tillman v. People, 12/ 401. A highway is a public passage for all.-People v. Beaubien, 2 Doug. 285. It is a way over which all the people of the state have a common and an equal right to travel, and which they have a common or at least a general, interest to keep unobstructed.-People v. Jackson, 7 / 446. A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.-Macomber v. c Nichols, 34/219. The rights of travelers on a public highway are mutual and CHAPTER I. LAYING OUT, ALTERING AND DISCONTINUING HIGHWAYS. than four rods (13) § 4036. SECTION 1. Public highways shall not be How highways less than four rods in width (except when laid out and estab- laid out less lished in the manner hereinafter prescribed) and they may be in width. laid out, altered or discontinued under the provisions of this chapter: First, By the commissioner of highways of any township, within his township, upon the written application of seven or more freeholders of such township; Second, By the joint action of the commissioners of highways of adjoining townships, on the line between such townships, on the written application of seven or more freeholders of each township, addressed to the commissioner of either township; Third, By the concurrent action of the commissioner of highways of any township and the municipal authority of any adjoining city or village having, by law, jurisdiction in laying out streets or highways, on the line between such township and such city or village. The commissioner of highways of any township may, in his discretion, but with the consent and approval of the township board of the township in which such highway is proposed to be established, duly entered of record, lay out a public highway in any case where it is deemed expedient, of any width less than four rods but not less than three rods, said highways to be of uniform width between points intersecting other highways. [See forms Nos. 1 and 2.] ง Am. 1901, Act 242; 1905, Act 59. APPLICATION: An application by freeholders of the township is a condition precedent to laying out a highway. People v. Township Board, 3/121; Roberts v. Highway Commissioners, 25 / 23. And the application must statethat the applicants are freeholders of the township. Wilson v. Township. Board, 87/240. The commissioners cannot entertain a second application for laying out the same road within one year from the first, and proceedings within that time are void.-Sage v. Township Board, 13 / 462. DISCONTINUING: Highway commissioners have authority to discontinue such roads as come within the exercise of their official duty without the intervention of a jury, but not state or territorial roads.--Goldsmith v. Highway Commissioner, 15/347. A highway may be vacated by non-user (see sec, 34 infra) and where a highway is vacated conditionally, it is not re-established by the suspension of the conditional occupation. Cooper v. Detroit, 42/584. Discontinuing highways by non-user and establishing highways and town line roads by user. See sec. 38 and notes. TOWNSHIP LINE ROAD: Proceedings for laying out a township line road must be taken jointly by the highway commissioners, and such action by one commissioner is void.-Brewer v. Gerow, 83 / 250. See sec. 22 infra. FOUR RODS: This is not a limitation as to width, and does not operate to restrict to such width.-Brown v. Twp. Board, 109/557. (14) § 4037. SEC. 2. In applications for laying out or Contents of altering a highway, the route along which the road is pro- application. posed to be laid, or the extent to which its route is proposed |