¶1(dissenting). This record aptly discloses the effect, the practical working out of this statute. Lands were returned for special assessments on the South Carl drain in the amount of $4,750.88, and but $22.08 of this amount has since been paid. Some of the descriptions have been deeded to the State and others probably will be. This leaves $4,728.80 which has been assessed against the lands of individual owners unpaid, and if the legislation is valid will require the county of Midland to pay from moneys raised for general purposes of the county this sum with almost a certainty of never being reimbursed. Obviously if the general fund of the county is thus depleted it must be replenished by tax on the general property of the county in order that the county may continue to function. Manifestly then in its ultimate results the measure is a taxation measure levying upon the taxable property of the county a tax to pay the delinquent special assessments of individual owners *523of lands in the assessment district. The power to tax is plenary, but it is fundamental that the taxpayer, overburdened as he is today, can only be required to pay for a public purpose. In a line of decisions of this court beginning with Dawson v. Township of Aurelius, 49 Mich. 479, and concluding with Township of Cooper v. Little, 220 Mich. 62, this court has held that aside from benefits to the public health and later from benefits to the public highways the construction of a drain is a neighborhood affair to be paid for by the levy of special assessments on the lands benefited and that the municipality is not concerned with the fiscal affairs of a drain.
¶2In the last cited case it was said:
“In Cilley v. Sullivan, 187 Mich. 447, we followed Attorney General v. McClear, 146 Mich. 45, in holding that in so far as matters of public health were concerned the county drain commissioner performed a State function, but neither of the cases had under consideration the question of the fiscal affairs of drain proceedings. In a long line of cases beginning with Dawson v. Township of Aurelius, 49 Mich. 479, this court has uniformly recognized that the fiscal affairs of a drain were separate and distinct from the general fiscal affairs of the municipality and that the municipality was not bound or obligated by the acts of the drain commissioner.”
¶3That case and the authorities there cited demonstrate that this court from the beginning has consistently ruled that the expense of drainage could not be levied upon the public beyond the amount the public was benefited originally by reason of benefit to the public health and later by reason of benefit to highways. In Kinnie v. Bare, 68 Mich. 625, it was said by Justice Ciiamplin, speaking for the court:
“Drain laws which take from the citizen his private property against his will, can be upheld solely upon the ground that such drains are necessary for the public health. They proceed upon the basis that low, *524wet, and marshy lands generate malaria, causing sickness and danger to the health and life of the people; that when they are of such character as to injure the health of the community, they become and are public nuisances, which ought to be abated, and the legislature have the right, under the police power inherent in every government, to protect the people from plague and pestilence, and to preserve the public health. But drainage for the purpose of private advantage, such as improving the quality of the land, or rendering it more productive or fit for cultivation, cannot be justified under the police power. Neither public convenience nor public welfare, independent of considerations of the public health, will justify the legislature in the enactment of laws—
“ ‘For the construction and maintenance of drains, and the assessment of taxes therefor.’
“It is evident that where the public health is not affected by the existence of low, swampy land, the only object to be accomplished by their drainage is the improvement of the land itsélf. The State is prohibited from engaging in such schemes of internal improvement by article 14, § 9, Const., which provides :
“ ‘The State shall not he a party to, or interested in, any work of internal improvement, nor engaged in carrying on any such work, except in the - expenditure of grants to the State of land or other property.’
“Ryerson v. Utley, 16 Mich. 269; People v. Salem, 20 Id. 452 (4 Am. Rep. 400); Bay City v. State Treasurer, 23 Id. 499; Thomas v. Port Huron, 27 Id. 320; Hubbard v. Springwells, 25 Id. 153; Benjamin v. Improvement Co., 42 Id. 628; Anderson v. Hill, 54 Id. 477.
“If private interests are solely involved no authority exists in the legislature to tax any person, either to compensate the owner for lands taken, or to pay for constructing the drain. People v. Salem, 20 Mich. 452; Anderson v. Hill, 54 Id. All.”
¶4After the decision in that case went down the Constitution was changed (§ 14, art. 10), so that the *525public may be assessed in drain proceedings for benefits to highways.
¶5That'the legislature may constitutionally require the general taxpaying public to pay towards the construction of a drain for all the benefits which accrue to the public health and to the public highways is beyond question, but when the general taxpaying public has paid for both such benefits all that has been assessed against it, it is in my judgment, beyond the constitutional power of the legislature to require such general taxpaying public to make up the delinquencies of individual landowners either by direct appropriation or by a forced loan from the general funds.
¶6The fact that other provisions of the drain law conflict with the Constitution does not save this one. Nor do I attach any significance to the fact that the salary and expenses of the drain commissioner, selected to administer this law, are made county charges. The salary and expenses of the judge of probate are public charges but no one would contend for a moment that the legislature could validly provide that the general funds of the county should be loaned or used to pay the indebtedness of estates being administered in the probate court. So far as the school moneys are concerned it is sufficient to say that the purpose is a public one in its entirety.
¶7But if the legislature may validly require the payment of the claims of drain contractors from the general fund of the county such claims then become claims against the county and must be audited by the board of supervisors as provided for in section 9 of article 8 of the Constitution which in part reads as follows:
“* … The boards of supervisors, or in counties having county auditors, such auditors, shall adjust all claims against their respective counties; appeals may be taken from such decisions of the boards of super*526visors or auditors to the circuit court in such manner as shall be prescribed by law.”
¶8The act in question does not require these claims to be audited by the board of supervisors and the claim in the instant case was not so audited or presented for audit.
¶9In my opinion the judgment of the trial court was right and should be affirmed.