also dissenting:
I concur in the dissent of Mr. Justice Dunn, but the questions" under discussion are so important that I desire to make a- few additional suggestions.
I cannot see how the former decisions in the Lake Front cases that have been heretofore referred to control in any way the questions raised in this case. The doctrine of res judicata cannot- apply here. The cause of action in the case now under consideration is not identical with but different from the causes of action in all of the former Lake Front cases. Those cases, therefore, are not conclusive in this case as to what might have been decided but only as to the precise point actually decided in such cases. (Cromwell v. County of Sac, 94 U. S. 351; Riverside Co. v. Townshend, 120 Ill. 9; Stone v. Salisbury, 209 id. 56; Cramer v. Wilson, 202 id. 83; Chicago Theological Seminary v. People, 189 id. 439; Leopold v. City of Chicago, 150 id. 568; Hanna v. Read, 102 id. 596; Merrifield v. Canal Comrs. 212 id. 456; Sawyer v. Nelson, 160 id. 629.) The same rule of law was laid down in one of the Lake Front cases. (Bliss v. Ward, 198 Ill. 104.) It has frequently been held by this court that no estoppel arose from a former judgment where the causes of action were not identical and where the question was not actually decided in the former case. (First Nat. Bank v. Leech, 207 Ill. 215; Gaffield v Plumber, 175 id. 521.) From a consideration of the opinions in the former cases I am unable to see that what is there stated supports the statement in the majority opinion that the question here involved w’as intended to be decided in any of the so-called Lake Front cases. It is a familiar rule that the authority of judicial decisions arises from what the court decides in reference to the facts before it, rather than from what the judge who delivers the opinion may say in illustration or support of such ruling. Bradley v. Lightcap, 202 Ill. 154; Cohens v. Virginia, 6 Wheat. 399.
I wish to emphasize especially what is stated in Mr. Justice Dunn’s dissent, that all private rights are held upon the implied condition that they may be re-taken by the sovereign. (People v. Mayor of New York, 32 Barb. 102; Stevenson v. Loehr, 57 Ill. 509.) I cannot agree with the conclusion of the majority opinion in this case that the public authorities had the right to accept the dedication of the Lake Front under such conditions that the legislature of this State would be deprived of the right to change the use of Grant Park if all the private rights affected thereby were first acquired and paid for through condemnation proceedings. Such acquiring of private rights under the sovereign power of eminent domain is no violation of the trust under which this park was accepted. There can be no violation of private rights in the exercise of the right of eminent domain. (West River Bridge Co. v. Dix, 6 How. 507; R. F. & P. R. R. Co. v. L. R. R. Co. 13 How. 71.) The legislature, by authorizing, under the act here in question, the change of use contemplated, did not violate public rights, because it represented the public. The majority opinion cites on this point City of Jacksonville v. Jacksonville Railway Co. 67 Ill. 540, Village of Princeville v. Auten, 77 id. 325, City of Alton v. Illinois Transportation Co. 12 id. 38, and Village of Riverside v. MacLain, 210 id. 308, among other cases, as holding that public authorities can not change the terms of a restricted dedication. In all those cases there was no prior exercise of the right of eminent domain. Those decisions fully supported the conclusions of this court in the former Lake Front decisions, but it seems clear to me that they are not in point on the question here under consideration, viz., that the use of public property can be changed by the proper public authorities after private rights have been acquired by condemnation. The reasoning of this court in many decisions leads to the opposite conclusion on this question from that reached by the majority opinion. (Carter v. City of Chicago, 57 Ill. 283; People v. Walsh, 96 id. 232; Lake Shore and Michigan Southern Railway Co. v. Chicago and Western Indiana Railroad Co. 97 id. 506; Meyer v. Village of Teutopolis, 131 id. 552; City of Chicago v. Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. 242 id. 30; City of Chicago v. Carpenter, 201 id. 402.) It would be contrary to the provisions of the constitution for the legislature to authorize the city authorities of any city to open and construct a street across private property without first having acquired the right so to do by purchase or condemnation. If this were attempted it could be enjoined under the authorities cited in the majority opinion, but the decree in such injunction proceedings certainly would not be res judicata as to condemnation proceedings thereafter brought against the complainant (the owner of the land) in the injunction proceedings.
The question whether private property can be taken for public use by the exercise of eminent domain is a legislative one. The courts, in considering that power, are re.quired only to decide, “Is the proposed use a public use?” “Has the power to condemn been delegated by the legislature?” “Is the act so delegating it in conformity with the constitution?” “Has the act been complied with?” I do not understand that the courts have ever claimed any general power to decide whether the use justifies the taking. The right of eminent domain is an attribute of sovereignty, of which the government cannot be deprived by grant or contract. Whatever exists in any form, whether tangible or intangible, may be subjected to the exercise of this power. Any contract or grant in restraint of the full exercise of this right is not obligatory upon the State and is unwarranted and void. The State is without power to divest itself of this right. (Village of Hyde Park v. Oakwoods Cemetery Ass’n, 119 Ill. 141; Metropolitan City Railway Co. v. Chicago West Division Railway Co. 87 id. 317; Sholl v. German Coal Co. 118 id. 427; Offield v. N. Y., N. H. & H. Co. 203 U. S. 372.) If the rule laid down in the majority opinion be" followed to its logical conclusion, this transcendent power of eminent domain will be transferred from the legislative to the judicial branch of the government. The courts will then be compelled to decide in every case, not only that the use is a public one, which is being exercised under legislative authority and not in conflict with the constitution, but also that such public use is wise or necessary. Such a rule of law, in my judgment, is not only in conflict with the authorities on this subject, but also with sound public policy.