(dissenting):
I regret my inability to concur with my brethren in this case. The contract in question, so far as it attempted to confer upon the plaintiff the privilege of selling refreshments in the Riverside Park for a term of five years, was, in my judgment, an illegal exercise of power on the part of the department of parks. If ever there was a purely governmental power, we find it here. There is not in the purpose of this contract the slightest trace of private benefit. Indeed, there could be none. It is true that the plaintiff pays for the privilege conferred, and that the city receives the agreed compensation. That, however, does not affect the inherent character of the contract. Its sole object is to provide for the pleasure, comfort and convenience of the public at large within the park area. That also is- its declared object. It recites that it is made “ in order to promote and increase the public enjoyment of the Public Park, known as Riverside Park,” and that is a purely governmental function, The head of the park department cannot contract away his continuous duty to determine what will contribute to the pleasure, comfort or convenience of the general public. He may provide music to-day, discontinue it to-morrow, and provide it again the next day. He may choose one musical director or a brass band one day ; another musical director -and an ordinary orchestra another. And lie can lawfully make no contract which, by conferring legal rights upon the person contracted with, will foreclose the exercise of his continuous judgment with regard to the subject-matter. The same view apper*50tains to every source of pleasure, convenience or comfort within the park area. The park commissioner may provide boats upon the lake, or goat carts and ponies, for the children. But he can make no contract upon those subjects which will prevent- his discontinuing the service or changing the personalities connected therewith, whenever'he thinks the public gobd will be promoted by such discontinuance or hy such change: He may provide for general refreshments at one time, or limit them to a glass of milk at another. He may permit wines ¡and spirits to accompany general refreshments,.or he may abolish the sale of wines and spirits altogether, or he may change the agent who is licensed to provide the permitted refreshments and select! another. What may seem useful in one view of the park’s conditions,, may, in the practical working of the system, turn out to be harmful or useless. It is for the park commissioner tó watch the working of the system and the agents to whom it is intrusted, and continue, discontinue or vary system or agent according to his best judgment. He cannot so contract as to limit the full and free exercise of; his judgment with regard to the subject-matter.
These views are, as it seems to ine, supported by a long and practically unbroken line of authorities. It has been repeatedly held, not only that a municipality may not directly barter away its legislative or governmental powers, but that it may not enter into contracts, the result of which is to control or hamper the exercise- of such powers. (Gale v. Village of Kalamazoo, 23 Mich. 344, 354; Milhau v. Sharp, 27 N. Y. 611; Britton v. Mayor, 21 How. Pr. 251; Matthews v. City of Alexandria, 68 Mo. 115 ; Lord v. City of Oconto, 47 Wis, 386 ; Rittenhouse v. Mayor, 25 Md. 336; 1 Dillon Mun. Corp. [4th ed.] § 97.) If such is the effect of a contract, it is void. In such a case it is quite immaterial whether it appeared to be reasonable and to subserve the public interest at the time it was made. As was well said by Judge Cooley in Gale v. Village of Kalamazoo (supra)“ It is impossible to predicate reasonableness of any contract by which the governing. authority abdicates any of its legislative powers, and precludes itself from meeting in the proper way the emergencies that may arise.” The observations of Judge Grover in Richmond County Gas-light Company v. Town of Middletown (59. N. Y. 228) are peculiarly applicable *51to the case at bar, and I entirely concur in them, though they seem not to have formed the actual ground of decision in that case. Speaking of an act which, in general terms, granted to the defendant’s board of town auditors the power to contract with the plaintiff to supply it with gas, the learned judge said : “ Under the act of 1865, the existing board of town auditors had no power, once for all, to determine that certain streets should be lighted for a great number of years, and deprive those who should succeed to • their places of all control over the subject, by entering into a contract with the plaintiff for this long term. An examination of the .act shows that it was intended to vest a discretion at all times in the board, whether any and which of the streets should be lighted with gas. The board could, therefore, contract for a supply only during its pleasure. When a majority, either from a change of views of-its existing members or the opinion of some of their successors, thought it best to discontinue the light in some or all the streets, they could not be divested of the power so to do by a previous contract entered into for a supply of gas.”
I cannot but think the conclusion arrived at in the majority opinion is a dangerous one, and that, if carried to its logical end, it may lead to an extensive farming out of these subjects of continuous governmental direction. The moment a vested private right is interposed between a public authority and the right to exercise its legislative or quasi-legislative powers, the entire-governmental system necessarily fails. But it is said that the plaintiff has no such vested right, and that the privilege conferred upon him is subject to regulation by the park department, or even to be abrogated entirely in case it is determined to have no restaurant in the park. It is, however, asserted in the prevailing opinion that “ so long as it is deemed best that a restaurant should be kept up at Claremont so long the plaintiff is entitled to the privileges of the contract.” If that is so, what becomes of the suggested power of regulation ? You cannot well regulate what you cannot change. And so long as the plaintiff fairly performs his contract, he cannot, under the majority opinion, be •denied its privileges. But why not ? Simply because, so it is held, he has a contract right of which he cannot be deprived} and which can only be regulated by the terms of the contract itself, and not at all by the exercise of an independent governmental power, Thus *52the commissioner is powerless to ¡require, even when public taste demands it, a higher order of service, or an agent'more highly-equipped to furnish that service. The contract for the. lower, order of service, and for the particular, and to the commissioner’s mind inferior, agent who is to furnish it must, at least for five years of good contract service, stand in the way. Thus, progress under independent governmental power is to be- blocked by private contract right. It comes to this — that if the commissioner is prevented by this contract from removing the plaintiff and substituting another and better restauranteur in. lfis stead, he .is simply prevented from . performing his duty as park commissioner. .- ■
If, however, he has the power of ¡removal, then it seems clear that he has merely exercised that power] The dismissal of the plaintiff, like his original appointment — for! in this view it was in substance an appointment — was a governmental act, and neither the commissioner nor his predecessors could preclude him from thus proceeding within his jurisdiction. ' ]
My conclusion is that the utmost that the park commissioners here could lawfully grant was a license, revocable whenever they deemed that the public pleasure, convenience or comfort would be promoted by a discontinuance of the service, pr by a change in the agent connected therewith. I think the judgment should be reversed, and the complaint dismissed. j
" Judgment affirmed, with costs. |