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'The State shall not be a party to, nor interested in, any work of internal improvement, nor engaged in carrying on any such work, except in the improvement or aiding in the improvement of the public wagon roads and in the expenditure of grants to the State of land or other property."

This question was presented to the court by counsel in the case of Attorney General v. Pingree, 120 Mich. 550 (46 L. R. A. 407), but the court declined to pass upon it, saying:

"It is not necessary to pass upon the question just stated in order to dispose of this case. The law under consideration involves much more than the simple question of municipal ownership of the tracks within the corporate limits, and, in the decision of the case before us, we do not deem it wise to express any opinion upon any question other than the one before us.

The question must therefore be regarded as open for consideration. That the improvement contemplated constitutes an internal improvement is conceded by counsel for the city, but he contends that it is a local internal improvement such as is not prohibited by the section above quoted, but, on the contrary, is authorized by other sections of the Constitution-citing section 38, art. 4; section 11, art. 10; section 1, art. 11. I think it clear that the proposed improvement is an "internal improvement." People, ex rel. Hubbard, v. Township Board of Springwells, 25 Mich. 153. But the determination that the work is an internal improvement does not determine that it falls within the ban of the constitutional prohibition against such improvements. It was held in the case last cited:

"That a macadamized road is a 'work of internal improvement' is manifest. The shortness of the road does not change its character. The restriction is not against great works, but against all works of that kind, and the case comes within the language and intent of the prohibition."

The case came within the language and intent of the

prohibition," because a purely local work was committed to State agents and taken out of the hands of the local officers, to whom alone the custody of the highway belonged. No one, I think, would argue that a township or city could not lawfully be authorized to construct a macadamized road. Such a conclusion would prevent the improvement of highways and streets entirely. It is a necessary implication of the opinion of the court in the Springwells Case that the township authorities had the power to construct a macadamized road, and were the only persons who did have that power, for the reason that such work was "a purely local work." The court say on this subject:

"The overseer of this highway district is excluded from all his functions, and so are all others who should have any voice in the matter. The result is that a purely local work, public in its character, is taken charge of and conducted at local expense, and paid for by local bonds and taxes, without giving any of the local authorities any function to perform, except that of yielding implicit obedience to the orders and requisitions of a commission, in whose appointment and government the town and its people have had no part whatever.

"This is a very clear usurpation, and, so far as it goes, an absolute destruction of the local privileges. There is no principle which can justify such an interference, which would not equally justify the assumption by the State, of immediate control by its agencies of every highway in the Commonwealth, and the imposition of local taxes for local purposes, to be levied and expended by persons neither residing in, nor in any way connected with, or responsible to, the towns on which they levy their charges."

The improvement of a street for authorized street purposes within the local jurisdiction, like the construction of sewers, lighting, and water plants, is a local internal improvement committed by the Constitution and statutes to the local government. It is only when in a proposed internal improvement the local government is really acting as the agent of the State government, or engaged in an enterprise which extends beyond the limits of the

municipality, in evasion of the constitutional prohibition, and not in the discharge of its local functions, that such improvement is prohibited. It is no answer, in my judgment, to say that certain of the improvements above mentioned are justified as an exercise of the police power. The police power cannot be exercised in contravention of an express prohibition of the Constitution. It, like all other governmental powers, is subject to the Constitution.

If I am correct in my conclusion as to the power of the city under its charter to construct the track, because such construction is of the same character of improvements as grading and paving, it seems to me to necessarily follow that it is of the same character, as an internal improvement, as grading and paving, and therefore not affected by the constitutional prohibition. I think, also, that, conceding the first point to be correctly determined, the second point, now under consideration, is ruled against complainant's contention by City of Detroit v. Railway, 133 Mich. 608. The constitutional prohibition was invoked in that case. In disposing of the question, the court say:

"We are also of the opinion that it cannot be said that the city engages in a work of internal improvement by making a contract whereby it shall construct and repair its highways and pavements, instead of allowing the railway company to interfere with them."

This case was followed in City of Detroit v. Railway, 134 Mich. 11, where was involved the right of the defendant company to demand compensation for concrete placed under the ties, under the following ordinance:

"In all unpaved streets wherein the grantees are duly authorized by the common council to construct street-railway tracks under the provisions of this ordinance, the preparation of the roadbed shall be made by the grantees, their successors or assigns, the excavation to extend seven inches below the under side of the cross-ties upon which the tracks are laid; but the six inches of concrete required by the ordinance as foundation for the ties to rest upon shall be laid by and at the expense of the city at the time

of the construction of the tracks; the city not being required, however, to do the paving between the tracks until the street is paved. The common council may, however, in its discretion, order the paving of the tracks on unpaved streets to be done at city expense contemporaneously with the first construction of said tracks."

In determining the question, this court said:

"The important question in the case is as to the right of the defendant to demand compensation for concrete placed under the ties in laying the tracks of the road in unpaved streets. That it was the duty of the city, under the ordinance, to put down this concrete, is clear; but it is contended that this provision of the ordinance was ultra vires. This contention is answered by the mandamus case between these same parties, decided at the present term. 133 Mich. 608."

In my opinion, these cases, and not the case of Attorney General v. Pingree, rule the case now before us. As well said by Judge Murphy in his opinion in the circuit court:

"In the last-mentioned case (134 Mich. 11), the city was required, because of its contract with the railway company, to build the concrete substructure for steel rails and ties in streets which were not only unpaved, but which may forever remain unpaved. The sole function of that foundation was to furnish a roadbed for the rails. In other words, the city, not under any claim of paving the street, was permitted to construct a portion of the equipment of a railway and assess the cost thereof upon the taxpayers. If there is constitutional warrant for thisand it is expressly decided that there is-why may not the city construct the roadbed in its entirety, as well as in part? There is no distinction in the principle involved."

The foregoing is an elaboration, after rehearing, of my original opinion written and served in September, 1906. The recent opinions of Justices CARPENTER and GRANT seem to warrant some further discussion of the questions involved. It is said: "Second. The constitutional provision in question, except as otherwise provided in the Constitution, prohibits municipalities as well as the State

at large from engaging in works of internal improvement;" citing People, ex rel. Bay City, v. State Treasurer, 23 Mich. 499; Thomas v. City of Port Huron, 27 Mich. 320; Anderson v. Hill, 54 Mich. 477; Attorney General v. Pingree, 120 Mich. 550 (46 L. R. A. 407). And again:

"To be effectual the constitutional prohibition-and it was intended to be effectual and must be so construedapplies to every part of the State, and to me it seems absurd to suppose that the people intended to permit a part of the State to do what the whole State could not do."

This absurdity has met with the approval of the Supreme Court of the United States. In Township of Pine Grove v. Talcott, 19 Wall. (U. S.) 666, the Federal Supreme Court said, relative to this constitutional provision:

"The case as to the Constitution is a proper one for the application of the maxim, 'Expressio unius est exclusio alterius.' The instrument is drawn with ability, care, and fullness of detail. If those who framed it had intended to forbid the granting of such aid by the municipal corporations of the State, as well as by the State itself, it cannot be that they would not have explicitly said so. is not to be supposed that such a gap was left in their work from oversight or inadvertence.

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"It is insisted that the invalidity of the statute has been determined by two judgments of the Supreme Court of Michigan, and that we are bound to follow those adjudications. People v. Township Board of Salem, 20 Mich. 452; People, ex rel. Bay City, v. State Treasurer, 23 Mich. 499. We have examined those cases with care. With all respect for the eminent tribunal by which the judgments were pronounced, we must be permitted to say that they are not satisfactory to our minds.

See, also, Taylor v. Ypsilanti, 105 U. S. 60. I refer to these cases, and numerous others might be cited, not for the purpose of arguing that the Michigan cases should be overruled, but for the purpose of supporting my contention that the application of those cases should not be extended to purely local improvements, which, in my judgment, are not necessarily embraced within their scope.