that we should consider its purpose and design, and that they prove that from its very inception it is not a legitimate highway improvement. It is suggested that section 38 of article 4 of the State Constitution, authorizing the legislature to confer upon townships and incorporated cities and villages "such powers of a local, legislative and administrative character as they may deem proper" has some bearing upon the proposition under discussion. I answer this by saying: The constitutional provision that the State-and this provision, as we have seen, extends to municipalities created by the State-shall not engage in works of internal improvement is a limitation upon the authority of the legislature when acting under this section. The legislature, when so acting, has no more right to disregard the prohibition against internal improvements than it has to disregard the provisions securing the right of trial by jury, or any other fundamental constitutional limitation upon its authority; and this principle was recognized and applied in People, ex rel. Bolt, v. Riordan, 73 Mich. 508. I am referred to, and can find, no other provision of the Constitution which authorizes municipalities to construct or to operate street railways. I therefore conclude there is none. It is said that in City of Detroit v. Railway, 133 Mich. 608, and later in 134 Mich. 11, we passed upon this question and determined that the city of Detroit has authority to construct a street railway. In the first case it appears that the city had entered into an agreement which obligated it to maintain the pavement of a street and the foundation upon which it rested, which foundation was also the foundation upon which the track of a street railway rested. "Some spots adjacent to its [the street-railway track] tracks became in bad condition, the pavement disintegrated and destroyed, and the foundation under the rails in places settled, allowing the rails to settle, due to the use of the track. The railway company having refused to repair the foundation and pavement, this [mandamus] proceeding was instituted." It was insisted that the city could not be compelled to do this work, because it was a prohibited work of internal improvement under the constitutional provision in question. We decided otherwise, saying: * * * "The street-railway law does not in any way relieve the municipalities from the responsibility of maintaining the highways in a reasonably safe condition for public travel, and, as it cannot shift its liability to a railway company by contracting with it for the maintenance of the way, it would seem that it should be authorized, if it is not under legal obligation, to repair the way when out of repair, whatever the cause. Street railways are adapted to aid travel in public highways, and, while the laws providing for their use impose upon private corporations the burden of constructing and operating them, all such laws contemplate that they will be constructed upon the highway. They presuppose a highway maintained by the public; and we are of the opinion that it is not beyond the authority of the public officers to build a highway that will support such traffic, even though it need a heavier pavement than ordinary traffic requires. 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." By this same reasoning we enforced in the second of those cases (City of Detroit v. Railway, 134 Mich. 11) the agreement of the city to pay for constructing the concrete foundations of a street-railway track on unpaved streets. It is said that we have held in these cases that a city may construct the foundations for a street-car track, and that it is absurd to deny that it may construct on said foundations the tracks for which they are intended. This is plausible reasoning; but plausible reasoning is not always sound reasoning. It conveys an erroneous impression to say that we have decided that a city may construct the foundations for street-railway tracks. The statement implies that we have held that it may construct those foundations under all circumstances. The utmost that can be said is that we have held that it may construct them under certain particular circumstances. To be exact it should be stated that we have decided that a city may construct the foundations of street-railway tracks when those foundations are also the foundations upon which rests the surface of a street which it (the city) is bound to maintain in a condition reasonably safe for public travel; and we have never held that it may construct foundations whose sole function was to furnish a roadbed for the rails. In other words, we have decided that the existence of a street railway upon a street in no way impairs the right or duty of a city to keep and maintain that street in a condition reasonably safe and fit for public travel, and that it may do or contract to do whatever is necessary to be done to perform this obligation. We upheld the city's agreement in those cases to construct the foundation of a street railway, not because it was the foundation of a street railway, but because there rested upon it a surface which it (the city) was bound to maintain in proper condition for travel. We had no occasion in those cases to determine, and did not determine, the right of a municipality to construct any other part of a street railway than that which had relation to the municipal obligation to maintain a street for ordinary traffic. In those cases the question was not the one involved here, viz., can a municipality construct a street railway to be used as a street railway for the purpose of transporting passengers for hire? but it was this, viz., is the obligation of a municipality to maintain its streets in proper condition for ordinary traffic lessened by the circumstance that it rests upon a foundation which is also the foundation of a street railway? In this latter case it can very truly be said that without maintaining the foundation the city could not maintain the surface which rested upon it; that without maintaining the foundation the city could not provide a reasonably safe street for public travel; and we held, and in my judgment properly held, that this reasoning was just as applicable to an unpaved as to a paved street. Would any one venture to say that a city cannot discharge its duty of providing a safe street for ordinary public travel without putting upon that foundation a street-railway track and leasing the same for the transportation of passengers for hire? That is a very different proposition. It is the proposition involved in this case; and its determination, as we have shown in this opinion, depends on very different reasoning, reasoning which results in a very different conclusion. It is also contended that, if we deny the right of a municipality to construct a street-railway system because it is a work of internal improvement, we must by the same reasoning deny its right to construct and maintain parks, waterworks, sewers, and a public lighting system. We answer this contention by saying that the right exercised in these latter instances is not prohibited by the constitutional provision under consideration. Those undertakings are not works of internal improvement within the meaning of the constitutional provision. One of the grounds upon which the right of a city to construct and maintain parks, waterworks, and sewers is that those undertakings contribute to the public health. 2 Dillon on Municipal Corporations (4th Ed.), § 598. A municipality may maintain a public lighting system because it tends to the suppression of crime and the safety of travelers upon municipal highways. That there is a constitutional distinction between such undertakings and the construction of a street railway is shown by our own decisions. We have held that straightening or deepening the channel of a stream for the purpose of reclaiming submerged lands (Anderson v. Hill, 54 Mich. 477; Wilcox v. Paddock, 65 Mich. 23), or for the purpose of improving the navigability of the stream (Ryerson v. Utley, 16 Mich. 269), is a work of internal improvement within the meaning of the Constitution; but, if it is straightened or deepened for the purpose of promoting public health, it is not a work of internal improvement within the meaning of the Constitution (Brady v. Hayward, 114 Mich. 326). Undertakings in the performance of what has always been regarded as a duty owed by a government to its citizens, like that of protecting their health or suppressing crime, have never been considered and are not properly denominated works of internal improvement. In this connection it is proper to observe that the furnishing of transportation facilities has not always been regarded the duty of a government. The question naturally arises: Why is a street railway a work of internal improvement and a sewer not a work of internal improvement? While it is sufficient to show that the authorities recognize the distinction between them, it would be more satisfactory if a reason for that distinction could be pointed out. This I shall attempt to do. All will agree that at the time our Constitution was adopted, undertakings by the government to construct artificial highways of commerce or to improve natural highways of commerce were called works of internal improvement. Indeed, the expression, "works of internal improvement," was applied to undertakings of this nature carried on by the national government very early in its history. It is therefore clear that our Constitution was intended to and does prohibit all such undertakings (though the recent amendment excepts improvement of public wagon roads from the prohibition), and this obviously, as before stated, prohibits the construction of a street railway. If we can determine just why governmental undertakings to construct artificial highways of commerce or to improve natural highways of commerce were called works of internal improvement, we will, I think, understand why a sewer and other similar works are not works of internal improvement. I suggest that the service they render and the resulting consequences indicate why they were called works of internal improvement. Highways of commerce, whether natural or artificial, by facilitating and cheaper |