"If you should find for the plaintiff, in arriving at the amount of damages, you will not take into consideration any disgrace or humiliation or injury to her name or reputation by reason of the utterance of any words charging her with taking money."

This was refused, and the refusal assigned as error. So far as any accusation, implied or other, was made by defendant in the store, it was not overheard. In the basement other employés were working, and in their presence, according to the testimony of plaintiff, defendant demanded to see the money she had on her person, that she give an account of it, and ended by taking the money, with the remark:

"Here is $4.20 belonging to her. I will put this in my pocket, and I will keep it until she proves that it is hers."

She testified, further, that in the basement defendant was fumbling about her waist where her purse was. Plaintiff was entitled to lay the whole matter before the jury, and the jury were properly permitted to consider the actions and the words of defendant to determine the character of the assault and battery claimed to have been committed by him. The court confined the jury to an estimation of damages flowing from the assault which they found, from all the evidence, was committed. The court could not properly have instructed the jury as matter of law that the loss of the money was not damage flowing from the assault.

It is complained that certain testimony of defendant was improperly excluded. While the refusal to admit the testimony is assigned as error, no exception was taken, nor are we informed, by an offer to prove or otherwise, what the testimony would have been, although it is asserted in the brief that the record makes the purpose of the evidence clear.

We find no error. Judgment is affirmed.

MCALVAY, C. J., and CARPENTER, HOOKER, and MOORE, JJ., concurred.

BOARD OF ROAD COM'RS OF WAYNE COUNTY v. BOARD OF AUDITORS OF WAYNE COUNTY.

1. CONSTITUTIONAL

LAW - LOCAL SELF-GOVERNMENT

ROAD LAW-ROAD COMMISSIONERS-APPOINTMENT.

COUNTY

Act No. 146, Pub. Acts 1905, in so far as it provides in section 6 for the appointment of county road commissioners for Wayne county by the county clerk and the mayor of Detroit, conflicts with the theory of local self-government guaranteed by the Constitution, and cannot be sustained.

2. OFFICERS-COUNTY ROAD COMMISSIONERS-OFFICERS DE JURERIGHT TO OFFICES.

The board of road commissioners for Wayne county, appointed by the county clerk and the mayor of Detroit, as provided by section 6, Act No. 146, Pub. Acts 1905, being appointed in an unconstitutional manner, are not officers de jure, and are therefore not entitled to disburse the fund raised by a tax levied by them, notwithstanding the board of supervisors recognized them as officers in so far as to spread the tax levied by them.

3. CONSTITUTIONAL LAW-CONSTRUCTION OF STATUTES INVALIDITY OF PART.

Section 6, Act No. 146, Pub. Acts 1905, providing for the appointment of road commissioners for Wayne county by the county clerk and the mayor of Detroit, cannot be considered as providing for a provisional appointment, neither can the act be construed as if the commissioners in Wayne county had been given no legislative powers and sustained as to its other provisions without further legislation.

4. SAME SELF-EXECUTING PROVISIONS.

Section 49, art. 4, of the Constitution, providing for county and township roads, cannot be construed as self-executing in Wayne county and not self-executing in all other counties.

5. MANDAMUS-DISCRETION TO REFUSE - COUNTY OFFICERS-PAYMENT OF DOUBTFUL CLAIMS.

On mandamus by county road commissioners against the county auditors and treasurer to compel audit and payment of the accounts and warrants of the road commissioners, where proceedings are pending to try the title of relators to their offices, and there has been little action by the public or

public officers which can be said to amount to an acquiescence in their claims, and great confusion is likely to result if it is held that warrants drawn by them must be paid, the court may exercise its discretion in determining whether the writ shall issue.

Certiorari to Wayne; Mandell, Brooke, and Murphy, JJ. Submitted February 19, 1907. (Calendar No. 22,122.) Decided April 30, 1907.

Mandamus by the board of county road commissioners of Wayne county to compel the board of county auditors of Wayne county and Forbes Robertson, county treasurer, to audit and pay a warrant on the county road fund. There was an order denying the writ, and relator brings certiorari. Affirmed.

In 1893, the Constitution of this State was amended by adding to article 4 a new section, to stand as section 49, which section read as follows:

"SEC. 49. The legislature may provide for the laying out, construction and maintenance of county and township roads, and may provide that any road heretofore laid out shall be a county or township road. County roads may be maintained at the expense of the county, and township roads at the expense of the township. County roads shall be under the control of a board of commissioners not to exceed five in number who shall be elected by the people, the number of said commissioners to be fixed by the board of supervisors of the county. For the construction and maintenance of county roads the commissioners may provide for an annual tax not exceeding two dollars upon each one thousand dollars of the assessment roll of the county for the preceding year. No county shall incur any indebtedness or issue any bonds for the construction or maintenance of county roads, except upon a vote of two-thirds of all the supervisors elected, and then to be approved by a majority vote at any general or special election; nor shall any such indebtedness at any time exceed three per cent. of the valuation of the county upon the last preceding assessment roll. The legislature may modify, change or repeal the powers and duties of the township commissioner of highways and

overseer of highways. The legislature may pass all necessary laws to carry this amendment into effect: Provided, That any act or acts passed by the legislature to carry this amendment into effect shall provide for a county and township system, and the county system shall become operative only in such counties as shall adopt it by a majority vote of the electors of said county, after the said question has been submitted to them by a two-thirds vote of all the members elect of the board of supervisors of such county, at a general or special election called for that purpose."

The legislature of 1893 passed, and gave immediate effect to, Act No. 149, Pub. Acts 1893, entitled "An act to provide for a county and township system of roads and to prescribe the powers and duties of the officers having the charge thereof," various provisions of which act have been since amended. 2 Comp. Laws, §§ 4262-4290; Acts. Nos. 98, 127, Pub. Acts 1899; Acts Nos. 197, 199, Pub. Acts 1905. As originally adopted, the act provided for an election of commissioners in each county adopting the system, limited the rate of assessment in Wayne county, and gave the board of supervisors of that county authority to fix the term of office of the commissioners. It was provided by this act that the question of adopting the system might be submitted to the electors when a twothirds vote of all of the members of the board of supervisors elect should deem it proper to do so. In 1899, section 49, art. 4, of the Constitution, was further amended, reading, now:

"SEC. 49. The legislature may provide for the laying out, construction, improvement and maintenance of highways, bridges and culverts by counties and townships, and may authorize counties to take charge and control of any highways within their limits for such purposes; and may modify, change or abolish the powers and duties of township commissioners and overseers of highways. But the tax raised in any one year shall not exceed two dollars upon each thousand dollars valuation, according to the assessment roll of the county for the preceding year. The legislature may also prescribe the powers and duties of

148 MICH.-17.

boards of supervisors in relation to highways, bridges and culverts, and may provide for one or more county road commissioners, to be elected by the people, or appointed, with such powers and duties as may be prescribed by law.

"No county shall incur any indebtedness for any purposes in excess of three per cent. of the valuation, according to the last assessment roll, and no such indebtedness beyond one-half of one per cent. of such valuation shall be incurred, unless authorized by a majority of the electors of said county voting thereon: Provided, That any county road system provided by law shall not go into operation in any county until the electors of said county, by a majority vote, have declared in favor of adopting the county road system."

In 1905, section 9 of article 14 of the Constitution was also amended; that portion of it of importance here reading as follows:

"SEC. 9. 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 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."

The legislature at the session of 1905 passed Act No. 146 (Pub. Acts 1905), entitled:

"An act to create and establish a State highway department by the appointment of a State highway commissioner and assistants, and defining the powers and duties of the office, and to provide for a system of State co-operation with townships and counties in the improvement of the public wagon roads, and to make an appropriation therefor for the fiscal years ending June thirty, nineteen hundred six, and June thirty, nineteen hundred seven, and to provide a tax to meet the same."

The act provides for State aid in building roads of certain standards of excellence, to be paid upon the certificate of the State highway commissioner upon a warrant drawn by the auditor general upon the State treasurer. By the legislation first referred to, as it now stands, it is provided,