498, 4 Fed. 161, was also a case of dedication by a private owner to a special public use.

This is also true of the cases cited by counsel, Carter v. Chicago, 57 Ill. 283; Price v. Thompson, 48 Mo. 361; and Sheen v. Stothart, 29 La. Ann. 630, which were all the cases referred to by counsel in which a court of chancery interfered to prevent the diversion of the use of public property to other than public uses, or to a different public use.

The plain distinction between this class of cases and the case at bar, rests in the opinion of this court, in the fact that in the case under consideration, the land acquired by the South Park commissioners was not donated to public use by private owners, clothing it with a special use for the benefit of the public, and retaining the ownership of the fee in the donator or dedicator. The lands held by the South Park commissioners were acquired by them by purchase or condemnation, and paid for by public taxation.

The corporation designated by the legislature holds the lands for the people's use, it is true, and the legislature has declared when creating this corporation, for what purpose the land is to be used; but it does not follow as a matter of law, that because the legislature has declared at one time a special purpose for which the land was to be used, the same legislature, or any subsequent legislature, acting for and on behalf of the people, cannot by law, change the use to which the land may be put.

The declaration by the legislature in the act of 1869, that the land was to be used for park purposes for the "rest and recreation of the people, and free forever," cannot be held in law to be a dedication of the property. The definition. of a "dedication" as given by Bouvier, is "an appropriation of land to some public use, made by the owner and accepted for such use by or on behalf of the public."

This implies that there must be a giving by one party and an acceptance by the other. A person or corporation, public or private, cannot in the nature of things give to itself. He

or it may devote their property to certain uses, but we are able to discover no law, or precedent, for the position, that a person or corporation, holding title in fee simple to land, and devoting it to a certain use, cannot at any time change that use of its or his own volition.

However desirable it might be, that public lands devoted to park purposes for the rest and recreation of the people in a great city like Chicago, should be forever sacredly devoted to that purpose, the present law and constitution are not effective for that purpose. This desirable consummation can only be attained, in our opinion, by an amendment to the constitution.

It is the province of a court not to make law, but to expound and interpret it. In the absence of constitutional restriction, the legislature of the state is omnipotent.

Counsel for the complainant has not been able to point out to this court any constitutional provision which limits the power of the legislature to control the use of lands, the fee to which belongs to the people; and in the absence of such constitutional restriction, we are forced to conclude that it has such power. Authorities are abundant in support of this position.

In Vol. VII, Am. & Eng. Ency. of Law, 417, the doctrine is stated in the following language:

"When lands held by a municipality for public use, are not subject to any special trust, the legislature may authorize a municipal corporation to sell and dispose of the same or apply them to uses different from those to which they are devoted, but, in the absence of such authority, the municipality has no implied power to do so. If the title to the lands has been acquired by condemnation proceedings, the legislature may authorize a sale thereof, if the fee is vested in the city, although the title of the city may be deemed to have been impressed with a trust to hold the lands for the uses for which they were condemned. If, however, the lands have been dedicated by private individuals for a public park

or square, the legislature has no authority to authorize any diversion from the use to which they were originally dedicated."

In the case of Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, the city of Brooklyn acquired by the right of eminent domain, a certain tract of land for a public park; and the act authorizing the same provided that the title to all the lands should vest forever in the city. The city afterwards ordered a conveyance of one lot to the defendant who refused to take the title, alleging that the act of the legis lature authorizing the transfer was unconstitutional, and that neither the mayor nor the park commissioners, who held the title for the city, could give a valid title to the fee.

Exactly the same questions were raised as in the case at bar and in passing upon them the court declares: (p. 243.)

"It is to be observed that the act of 1861 vested the lands in the city of Brooklyn forever, but for the uses and purposes in that act mentioned. Though the city took the title to the lands by this provision, it took it for the public use as a park, and held it in trust for that purpose. Of course, taking the title, had it taken it also free from such trust, it could have sold and conveyed it away, when and as it chose Receiving the title in trust for an especial public use, it could not convey without the sanction of the legislature; and the act of 1870 expresses the legislative sanction. Under its provisions (Laws of 1870, ch. 373, p. 848), it is authorized to sell and convey, with covenants, certain portions of the lands taken (§ 1), of which the premises in question in this case are a part. It was within the power of the legislature to relieve the city from the trust to hold it for a use only, and to authorize it to sell and convey. Where the property is taken, the owner paid its true value, and the title vested in the public, it owns the whole property, and not merely the use; and, though the particular use may be abandoned, the right to the property remains. The property is still held in trust for the public by the authorities.

** *

By legislative sanction it may be sold, be changed in its character from realty to personalty, and the avails be devoted to general or special public purposes."

In the case of Clark v. City of Providence, 16 R. I. 337, 15 Atl. 763, it was held that the general assembly of Rhode Island had the power as against the public to authorize the discontinuance of a public park, the fee of which is in the city, and the sale of the park lands.

In the case of Mowery v. City of Providence, 16 R. I. 422, 16 Atl. 511, it was held that a court of chancery had no power to enjoin a city from discontinuing a park and selling the land under an act of the legislature, unless the act conferring the authority was unconstitutional.

In the case of the Chicago, Rock Island and Pacific Railroad Company v. City of Joliet, 79 Ill. 25, the supreme court of this state held (p. 33) that where property was dedicated by the owner thereof, as public ground generally, it was an unrestricted dedication to public use, and that the legislature, under such a dedication, had the right to authorize the change of the use by the public from that of a court house yard to railway purposes.

Dillon, in his admirable work on municipal corporations, (4th ed.), sec. 651, lays down the law upon this subject in the following terms:

"As between the municipality and the general public, the legislative power is, in the absence of special constitutional restriction, supreme, and so it is in all cases where there are no private rights involved. If the municipal corporation holds the full title to the ground for public uses, without restriction, the legislature may doubtless direct and regulate the purposes for which the public may use it. But if a grant be made by a proprietor of a town in laying it out for a specific and limited purpose, as, for example, a 'public square,' the municipality or public acquiring it upon a trust for the uses and purposes set forth on the plat or in the conveyance, it has been decided by the supreme court of Iowa that the grantor in such a case retains an interest there

in of such a nature that it is not, as against him, within the power of the legislature to authorize its sale by the municipality.

And in the following section, Dillon lays down the general rule in the following language:

"That while the general rule is that the legislative dominion over the uses of public property is plenary, it is also true, as is more fully shown elsewhere, that there may be rights. in the dedicator or in the abutting owner of such a nature,— that is, property rights and rights resting upon contract,that they cannot be destroyed, and of which he can only be deprived by the exercise of the right of eminent domain. ***'

In the case of City of Newark v. Stockton, 44 N. J. Eq. 179, the court, (p. 186) in passing upon the question as to whether or not the city of Newark had a right to divert the use of a certain tract of land, acquired by its inhabitants for burial purposes, declares:

"The general principle of law on the subject is, that municipal property is subject to legislative authority. When property is put in trust in the hands of such a corporation the effect is to prevent the corporation from perverting, at its own will, such property to other uses; but when the uses are public, and not derived from private grant, they are liable to be modified or changed, with the concurrence of the law-making power. No case has been found that conflicts with this rule."

Our own supreme court, in the case of People v. Walsh, 96 Ill. 232, has recognized the right of the legislature to control and change the uses of property, the fee of which is held by or for the public. In that case the right of the South Park commissioners to change the use of one of the streets of the city of Chicago to a boulevard, was called into question by quo warranto; and in passing upon the question the court says: (p. 248.)

"The fee of the streets here, is, on both sides, stated to be in the city. That is to say, the city, as the agent or repre