CONSTITUTIONAL PROVISIONS.

ARTICLE VIII.

(1) SEC. 18. There shall be elected annually on the first Monday of April in each organized township one supervisor, one township clerk, one commissioner of highways, one township treasurer, not to exceed four constables and one overseer of highways for each highway district, whose powers and duties shall be prescribed by law.

(2) SEC. 26. The legislature may by general law provide for the laying out, construction, improvement and maintenance of highways, bridges and culverts by the state and by the counties and townships thereof and by road districts; and may authorize counties or districts to take charge and control of any highway within their limits for such purposes. The legislature may also by general law prescribe the powers and duties of boards of supervisors in relation to highways, bridges and culverts; may provide for county and district road commissioners to be appointed or elected, with such powers and duties as may be prescribed by law; and may change and abolish the powers and duties of township commissioners and overseers of highways. The legislature may provide by law for submitting the question of adopting the county road system to the electors of the counties, and such road system shall not go into operation in any county until approved by a majority of the electors thereof voting thereThe tax raised for road purposes by counties shall not exceed in any one year five dollars upon each one thousand dollars of assessed valuation for the preceding year.

on.

Act 59, P. A. of 1915, (§ 4671 et seq., C. L. 1915), is not invalid as constituting an invasion of the township right of self-government, as the improvement of highways is a public as well as a local concern, under the constitution, art. viii, § 26, and the state necessarily has the right to designate a proper agent to carry out the work-Loomis v. Rogers, 197 / 265.

(3) SEC. 28. No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.

Constitutional provisions, as well as legislative enactments must be held prospective in operation only, unless they carry upon their face an intention to be retrospective. Contract rights are not subject to impairment by later constitutional provisions any more than by legislative enactments.-City of Lansing v. Mich. Power Co., 183/400, 409. A city has the power to pass any reasonable ordinance regulating the use of the streets and insofar as Sec. 9 of Act 318, of 1909 attempts to deprive a municipality of this right it is unconstitutional.-People v. McGraw. 184/234. See Edison Illuminating Co. v. Misch, 200/121.

ARTICLE X.

(4) SEC. 10. The state may contract debts to meet deficits in revenue, but such debts shall not in the aggregate at any time, exceed two hundred fifty thousand dollars. The state may also contract debts to repel invasion, suppress insurrection, defend the state or aid the United States in time of war. The money so raised shall be applied to the purposes for which it is raised or to the payment of the debts contracted. The state may borrow not to exceed fifty million dollars for the improvement of highways and pledge its credit, and issue bonds therefor on such terms as shall be provided by law.

As proposed by joint resolution No. 1, Public Acts of 1919, pages 763-64; ratified April 7, 1919.

GENERAL HIGHWAY LAW.

Highways, etc., authority for.

An Act to revise, consolidate and add to the laws relating to the establishment, opening, improvement, maintenance and use of the public highways and private roads, the condemnation of property and gravel therefor; the building, repairing and preservation of bridges; setting and protecting shade trees, drainage, cutting weeds and brush within this state, and providing for the election and defining the powers, duties and compensation of state, county, township and district highway officials.

[Act 283, P. A. 1909.]

The People of the State of Michigan enact:

(5) § 4287. SECTION 1. Public highways and private roads may be established, opened, improved and maintained within this state under the provisions of this act, and the counties, townships, cities, villages and districts of this state shall possess the authority herein prescribed for the building, repairing and preservation of bridges and culverts; the draining of highways, cutting of weeds and brush in the improvement of highways and the duties of state, county, township, city, village and district highway officials shall be as defined in this act.

Act 283 of 1909 was passed to "revise, consolidate and add to" existing laws on the subject, in an effort to get the scattered highway laws together and in more harmonious working condition.-Township of Clearwater v. Supervisors, 187/523.

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. Nichols, 34/219. The rights of travelers on a public highway are mutual and co-ordinate.-Pigott v. Engle, 60/228. We have no instance, in our local institutions, of the laying out of ways, except by the persons chosen in the community that is burdened, either alone or as representing them in the county or state. Drain Com'r v. Baxter, 57 / 131.

The rights of travelers on a highway are mutual and co-ordinate. It is the duty of each to so use his right of passage as not to cause injury or detriment to another having a like right.-Pigott v. Engle, 60 / 228.

The fee in the highway is in the abutting owner, subject only to the easement of the public to use it for the purpose of a highway.-People v. Foss, 80/564; Graham v. City of Detroit, 174/542.

Public highways are under legislative control. They are for the use of the public in general for passage and traffic, without distinction. The restrictions upon their use are only such as are calculated to secure to the general public the largest practicable benefit for the enjoyment of the easement.-People v. Eaton, 100 /211.

A cul de sac may be a public highway.-Fields v. Commissioner, 102/454; Rogren v. Corwin, 181/56.

A turnpike road becomes a public highway on forfeiture of franchise.-Highway Commissioner v. Cobb, 104 / 395.

Subject to the constitution and the property rights of abutting owners, the legislature has paramount authority over all public ways.-Scovel v. Detroit, 146/95.

A highway not within an incorporated village or city cannot be laid out over navigable waters. A highway is not a wharf or landing place.-Highway Commissioner v. Ludwick, 151 / 500.

A highway is a way or thoroughfare open to all, a way over which the public at large have a right of passage; the name being derived from alta via, or king's highway, meaning a thoroughfare opened and maintained by the highest authority common to all, for the free use of the sovereign and all his subjects.Burdick v. Harbor Springs Lumber Co., 167 / 679.

A road to which the public can gain access and use for practical purposes only by trespassing upon private property, cannot well be considered a public highway. Ayres v. Richards, 41/681.

A municipality in its control of highways acts for the state.-Graham v. City of Detroit, 174/543.

Equity has jurisdiction to restrain defendant highway commissioner from threatened trespass and injury to plaintiff's freehold and to compensate him for damages already sustained, where defendant was attempting to locate, by mistake, a highway elsewhere than upon the true quarter line; and plaintiff's remedy was not by appeal under section 4294, C. L. 1915, since he was not opposing the opening of the highway as petitioned for, nor attacking the statutory proceedings determining it a public necessity.-Groves v. Bowman, 201 / 46.

CHAPTER I.

LAYING OUT, ALTERING AND DISCONTINUING HIGHWAYS. (6) § 4288. SECTION 1. Public highways shall not be less than four rods in width, except when laid out and established in the manner hereinafter prescribed, and they may be laid out, altered or discontinued under the provisions of this chapter:

First, By the commissioner of highways of any township, Application. within his township, upon the written application of seven or more freeholders of such township;

townships,

Second, By the joint action of the commissioners of high- Adjoining ways of adjoining townships, on the line between such town- joint action. ships, on the written application of seven or more freeholders of each township, addressed to the commissioner of either township;

action with

Third, By the concurrent action of the commissioner of Concurrent highways of any township and the municipal authority of cities. 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, on the written application of seven or more freeholders of each township, city or village;

Fourth, Commissioners of highways shall also have power section lines. to lay out and establish highways on section lines, through uninclosed and unimproved lands, without the application required by the first subdivision of this section.

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 state that the applicants are freeholders of the township.-Wilson v. Township Board, 87/240. Public highways can be established in two ways only under the statutes of this state: (1) by proceedings instituted by the commissioner of highways of a_township upon written application of freeholders, notice, etc.; (2) by user.-Brown v. Twp. of Byron, 189/584.

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 y. Highway Commissioner, 15/347. A highway may be vacated by non-user (see section 25), 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. 31 and notes.

Application, what to contain.

Notice to occupant, serving of, etc.

On R. R. companies.

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 section 12.

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. The use by the public of a portion of a strip of land claimed to be a public way does not of necessity, either in city or county, determine the public right to extend over four rods in width.-Detroit City v. Myers, 152 / 666.

RIGHTS OF ABUTTING OWNER: A township, in constructing an embankment for a highway, has no right to so construct it as to cause the deposit of earth in a pond of a land owner or upon his land.-Schneider v. Brown Twp., 142 / 46.

(7) § 4289. SEC. 2. In applications for laying out or altering a highway, the route along which the road is proposed to be laid, or the extent to which its route is proposed to be changed, shall be described in general terms, and where the application is for the alteration or discontinuance of a road, such road may be described by any name by which it is known, and if the discontinuance of only a portion of any road is asked for, such portion shall be specified.

LAYING OUT AND DISCONTINUING: Proceedings to open one highway and discontinue another cannot be combined; only one proceeding can be taken at a time, and every road must be opened or closed on its own merits.-Shue v. Highway Commissioner, 41 / 638. Void proceedings by commissioners discontinuing a highway are not a bar to regular ones taken to widen it to the statutory width; which latter action is not premature by reason of the pendency of certiorari proceedings. In which the invalidity of such discontinuance proceedings is established-Weber v. Stagray, 75/32. Highway commissioners and township boards have no authority to act for the mere purpose of settling boundaries, and cannot properly disturb any possession with that object. The location of a highway according to the original survey is generally of no consequence where abutting owners have held continued occupancy for twenty-five years. Shue v. Highway Commissioner, 41 / 638.

(8) § 4290. SEC. 3. In case of an application under the first subdivision of section one of this chapter, the commissioner shall, within five days after receiving the same, issue a written notice, stating the object of such application, and appointing a time and place of hearing, which notice shall be served by the commissioner or by some other competent person, on the owners or occupants of lands through or adjoining which it is proposed to lay out, alter or discontinue such road, either personally or by a copy left at the residence of each owner or occupant, at least ten days before the time of hearing; and if no person shall reside upon any such lands, and the owner thereof shall not reside in the county in which said lands are situated, such notice to owners of such non-resident land shall be served by posting up the same in three public places in the township ten days before the time of hearing. Notice shall be served upon railroad companies by leaving a copy thereof with the agent in charge of any ticket or freight office of the company operating such railroad on the line thereof.

PUBLICATION AND SERVICE OF NOTICE: A delay of over a month after receiving the application is fatal to the proceedings.-Sharpshooters Ass'n v. High. Com'r, 34/36. Where the notice sufficiently states the starting point and width, the use of the words "varying so far as is necessary to find suitable grounds for making a good and substantial road" will not vitiate the legality of the highway so far as it actually follows the survey lines.--Shepherd v. Gates, 50 / 495. Service on the attorney of a railroad company is not authorized by statute.-D. M. & T. R. R. Co. v. Detroit, 49/47. Service on freight agent.Truax v. Sterling, 74 / 160. The return of service should show upon what particular persons the notice was served, and whether served personally or by copy left at residence; also should show the particular places where the notices were posted. People v. Highway Commissioners, 14/528. Sufficiency of