delivered the opinion of the Court:
The question here is, is it competent for the General Assembly to transfer the control of the streets of a city or village to park commissioners, to be by them controled for boulevard and drive-way purposes ? There is no other diversion of the use or control of the streets here charged, and it is not made to appear that the control and use of streets for boulevard and drive-way purposes are inconsistent with their use for the ordinary purposes of streets. The plea, indeed, distinctly avers that the relators “have claimed, and do yet claim to have, use and enjoy control, authority and jurisdiction over said parts of Michigan avenue and Thirty-fifth street, as they well might and still may, for the public purposes and uses for which said parts of said streets were dedicated and conveyed, and under the authority conferred and the duties imposed upon them by law.”
That the park commissioners are a public municipal corporation in whom is vested certain governmental powers of a political character, is settled by the previous decisions of this court. The People ex rel. Wilson v. Salomon, 51 Ill. 37; The People ex rel. v. Williams, id. 63; South Park Comrs. v. Dunlevy, 91 id. 49.
As was said in Wilcox v. The People, 90 Ill. 192, the park commissioners “ are agents by whom, in part, the people of the State carry on the government.” And counsel for the relator concede that it is competent for the legislature to substitute one municipality for another in the control of streets; that it may abolish a city and appoint a successor, and that it may enlarge the powers of park commissioners and make them an ordinary municipality. Hence, it would seem, there is no objection to the vesting of the South Park Commissioners with the control of the parts of streets in question, and imposing on them the duty of improving and repairing them. Manifestly, so long as the streets are to be kept and used for the usual and ordinary uses and purposes of streets, there could be found no constitutional objection to legislation of this character. But the claim here is, that there will be a use of the streets for boulevard and drive-way purposes, which will be in violation of rights guaranteed by the constitution, because it will exclude the usual and ordinary uses to which streets are applied. Ho such use is specifically charged in the information or admitted in the plea, and such a use is not an indispensable condition to the jurisdiction of the park commissioners over these streets. Will it not be quite time enough to complain of acts in excess of lawful authority when the right to practice them is avowed? Surely there can be no objection to the exercise of the powers of improving and controling streets for ordinary use and travel, merely because the right to do more than this might be claimed.
We are unable to see that the use of the streets in question for the usual purposes of streets, must necessarily be inconsistent with their improvement and use for boulevard and drive-way purposes. We can not say, as matter of law, that authority to take and use streets for these purposes implies, necessarily, authority to exclude the usual and ordinary uses of streets.
On this ground, then, alone, we might affirm the judgment below. It is not shown that the respondents are exercising or attempting to exercise a franchise, which they have usurped, in violation of law.
But, in view of the importance of the questions discussed, it is perhaps our duty to go further.
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 representative of the public, holds the fee for the use of the public,— not the citizens of the city alone, but the entire public, of which the legislature is the representative. Chicago, v. Rumsey, 87 Ill. 355.
So long as the use of the streets is not -exclusive in its character, it is admitted by relator’s counsel to be well settled the mode of its exercise is within the control of the legislature. Embankments for railways, tunnels for crossing streams, etc., notwithstanding they abridge the ordinary mode of use, are conceded to be within the, competency of legislative authorization. But the counsel insist that the fee here is in the city to hold in trust for the public, and that any change of the use from that within contemplation when the streets were laid out, is a perversion of the trust and beyond legislative power, and Jacksonville v. J. Ry. Co. 67 Ill. 540, Carter v. Chicago, 57 id. 283, and City of Alton v. Transportation Co. 12 id. 38, are cited in support of the position.
Hone of these cases are analogous to the present.
In the first named case, bill was filed by the city to enjoin the railway company from-’ laying down its track over the public park. Ho consent for that purpose was given by the city or the adjacent property holders.
The next case was a bill in chancery, by a property owner, to enjoin the city from carrying into effect a certain ordinance with reference to a portion of Franklin street, and the question related purely to the private rights of the complainant.
The other case was a contest between the city and a private corporation with regard to the ownership of certain property.
In neither case was there any question of the competency of the legislature, in the case of a purely public trust, unaffected by private rights, to change the use to which the trust was devoted.
In the present case, the legislature has conferred the authority to change the use. The city has acted pursuant to the authority and given its consent, and no private individual interposes objection. The case is purely public, and relates only to the public interest.
In cases of property dedicated to public uses there are, most usually, two classes of interests affected, one that of the public generally, and the other that of private parties.
For any change of such a use, since the adoption of our present constitution, there can hardly be any doubt but that, to the extent it damages the private individual, he is entitled to recover. But he may waive this right if he chooses. If he does not sue, it concerns neither other individuals nor the public at large. They can not litigate for him, either in his own name, or in the name of the public. This is so elementary and obvious that it needs no reference to authorities.
But the legislature represents the public. So far as concerns the public, it may authorize one use to-day and another and different use to-morrow. If the new use affects private rights, proceedings for condemnation may have to be invoked, but so far as it affects the public alone, its representative, in the absence of constitutional restraint, may do as it pleases.
In The People v. Kerr, 27 N. Y. 188, the proceeding was to enjoin digging up and perverting the soil for the purpose of laying and operating a railroad, and to enjoin the defendants, the mayor, aldermen, etc., from giving their assent to such acts, etc. The court, among other things, said: “ So far as the existing public rights in these streets are concerned, such as the right of passage and travel over them as common highways, a little reflection will show that the legislature has supreme control over them. When no private interests are involved or invaded, the legislature may close a highway and relinquish altogether its use by the public, or it may regulate such use or restrict it to peculiar vehicles, or to the use of particular motive power. It may change 6ne kind of use into another, so long as the property continues devoted to public use. What belongs to the public may be controled and disposed of in any way which the public agent sees fit.”
In Moses et al. v. Pittsburg, Fort Wayne and Chicago R. R. Co. 21 Ill. 516, the suit was against the railroad company, by a private property holder, to enjoin the building and operating of a railroad- in the street. The injunction was refused, the court saying: “ A street is made for the passage of persons and property, and the law can not define what exclusive means of transportation and passage shall be used. Universal experience shows that this can best be left to the determination of the municipal authorities, who are supposed to be best acquainted with the wants and necessities of the citizens generally.”
In Murphy v. Chicago, 29 Ill. 279, and other kindred cases, decided before the adoption of the present constitution, it was held that it was a legitimate use of a street to allow a railroad to be constructed and operated within it, and even where private property holders were injured thereby, there could be no recovery.
In Chicago v. Rumsey, 87 Ill. 348, we held that it was a legitimate use of a street to allow a tunnel to be constructed in it.
The laying of railroad tracks and the making of the necessary excavations and embankments therefor, and the making of a tunnel in a street, in many instances practically destroy streets for the ordinary street purposes, and in all cases they materially contract and abridge the use of the street for the ordinary purposes of streets.
But what is the difference between the power to abridge and contract a use and the power to change it? Neither is consistent with the continued right in the public to have a street perpetually remain in the identical use to which it is at first dedicated.
The principle controling, as we have seen, is, “ when no private interests are involved or invaded, the legislature may close a highway or street and relinquish altogether its use by the public, or it may regulate such use or restrict it.”
Dillon, in his work on Municipal Corporations, (1st ed.) § 527, says: “The plenary power of the legislature over streets and highways is such that it may, in the absence of special constitutional restriction, vacate or discontinue them, or invest municipal corporations with this authority.”
And in the same volume, in § 519, he again says: u As respects the public or municipalities, there is no limit upon the power of the legislature as to the uses to which streets may be devoted.”
See, also, Gray v. Iowa Land Co. 26 Iowa, 387; McDonald v. English, 85 Ill. 235; Galesburg v. Hawkinson, 75 id. 156.
Even where private parties are invested with a franchise to build and control a toll bridge or toll road, the legislature may authorize the franchise to be taken and condemned for public use, upon making just compensation. West River Bridge Co. v. Dix, 6 Howard, 507,—a fortiori can public property be taken which is held for one use and appropriated to another and different use.
The private rights or interests in public property can not, of course, be taken without compensation to be made pursuant to law.
But “ every species of property which may become necessary for the public use, and which the government can not appropriate under any other recognized right, is subject to be seized and appropriated under the right of eminent domain.” Cooley’s Const. Limitations, (1st ed.) 526.
We are not authorized to assume, in this proceeding, that the park commissioners will undertake to divest private rights and appropriate them to public use without making satisfactory compensation, or proceeding to condemn them under the law relating to eminent domain.
To authorize a judgment of ouster, it is essential that it be established, as respects the streets in controversy, that the park commissioners are usurpers and intruders, and hence that their every act is in violation of law. If they may, by any legal steps or process, make the diversion complained of, the judgment below is right, because we are to assume they will, in all things, act in conformity with law, until the contrary is affirmatively made to appear.
In Kreigh v. Chicago, 86 Ill. 407, we held no power existed in the city to alienate the control of its streets to the park commissioners, and that the thirty-eighth section of chapter 105 of the ¡Revised Statutes of 1874, entitled Parks, authorizing the connecting of contiguous parks by boulevards or pleasure-ways, and putting such boulevards or pleasure-ways under the control of park commissioners, etc., had no reference to prior established streets, and did not authorize the park commissioners to purchase or acquire established streets, nor the city authorities to surrender control over them. But, in the present case, the needed legislation is supplied. What was there held to be wanting, we have here; and the question is not, have the commissioners and the city the power under the statute, but was it competent for the legislature to enact the statute conferring the power upon the city and the park commissioners.
In the ordinance of the city granting to the park commissioners the use and control of the parts of streets in controversy, there is this reservation: “Provided, however, that nothing in this ordinance contained shall be construed as a waiver or relinquishment by or on the part of said city, of any of its rights or powers in relation to the laying of water or gas mains and pipes, and the building and repairing of sewers, in said streets, and the regulating of openings for the same; all powers which said city now has in relation to "water and gas pipes, and sewers, and their connections and the regulation of the same, and the openings for the same, in streets and alleys of said city, being hereby expressly reserved as to the said part of Michigan avenue and Thirty-fifth street in as ample a manner as if the aforesaid consent was not given.”
Counsel for relators make the point on this, that “the control contemplated by the act of 1879 is an individual control; ” that “ an absolute control is necessary, in order to the execution of the powers of the commissioners, and is iuconsistent with a partial control by the city.” They argue: “ The question here is, has the council assented. It had the grant of powers so to do, but might or not, as it should choose; it was under no moral or legal obligation. The whole ordinance read together shows that it did not assent in the manner contemplated or authorized.”
It is not attempted to be shown why an absolute control is necessary in order to the execution of the powers of the commissioners. It is asserted that this necessity is inconsistent with a partial control by the city, and if the necessity be conceded, the conclusion would clearly be correct. But why may not the main objects and purposes of the grant to the park commissioners be entirely consistent with the exercise of the reserved powers in the city?
The laying of. water or gas mains and pipes, and the building and repairing of sewers, would have to be so done as to interfere as little as possible with the use of the streets; and it approximates accuracy sufficiently for all practical purposes, to say that, when so done, they would not materially interfere with the use of the streets. Some inconvenience would, doubtless, occasionally result, by reason of disagreement between the city council and the park commissioners as to systems of sewerage, but in such case the park commissioners would simply have to yield—they take the grant cum onere.
The act of April 9,1879, does not make it obligatory upon the city to confer control over the streets upon the park commissioners. It only enables them to do so or not as they shall choose. The corporate authorities having control of any such streets, must first give their consent. They are at liberty to entirely withhold it, or grant it only subject to conditions. If the park commissioners accept it with conditions, the performance of the conditions then becomes obligatory.
There is no more apparent repugnancy between the grant and the reservation here than there is between a lease of lands for farming purposes and the reservation of the right to take timber or gravel, etc., from the land, or to travel across it, or use water from springs thereon, or to excavate and mine for coal or other minerals beneath its surface.
The grant is merely charged with the burden of the reservation. The rights of each may be enjoyed without necessary conflict.
Upon the whole, we think the judgment below to be right. The mere fact that the park commissioners may claim the right to do some act prejudicial to the interests of individuals, furnishes no reason why they may not, as affects the public, do those acts which are clearly sanctioned by law. If they may, as respects the control and improvement of these streets in some respects, act as a corporation, they have a, franchise, and can not be declared usurpers and intruders merely because in other respects that they'might claim the right to act they would exceed the authority vested in them by law.
Intrusion or usurpation, and trespass, are not synonymous terms.
As respects any excess of authority, the action of the commissioners may be controled by injunction; and they may be held individually responsible in actions by those who are pecuniarily injured; and, in proper cases, they may be liable to criminal prosecutions.
But this proceeding merely questions their right to act at all within, and not without, the scope of statutory authority.
The judgment is affirmed.
Judgment affirmed.