dissenting:
I respectfully dissent.
I.
Section 3374-12, Code of 1942, vests in a municipality the power to close and vacate streets, the only requirement being that abutting property owners must be compensated for any damage sustained. It is conceded that appellees are not abutting property owners. The only property abutting that portion of Fourth Street vacated by the ordinance is the school on the south and the park on *453the north. “To deny the municipality this right (to vacate a street) would be to deny to it the power to exercise one of the most important protective duties that it owes the public.” Poythress v. R. R. Company, 92 Miss. 638, 46 So. 139.
“The question of the necessity for closing a street or highway as distinguished from the question of the public purpose or use, belongs exclusively to the legislative department of the government, so, it is within the province of the public authorities in whom the power to vacate is vested to determine when it is to be exercised and their action in this regard will not be reviewed by the courts, in the absence of fraud or a manifest abuse of discretion. The Court cannot control or revise such decision on the ground of inexpediency, injustice or imprioriety. Nor will it inquire into the motive of the tribunal to which the matter is committed where there is no allegation of fraud.” 25 Am. Jur., Highways, Sec. 120.
II.
The circuit court held the ordinance invalid solely on the ground that it constituted a subversion of Lintonia Park to a school playground. The judges who voted to affirm the circuit court seem to reach the same conclusion. This assumption, in my opinion, is without foundation in the record. There was some testimony before the city board that the school authorities intended that the children play in the park. There is nothing in the ordinance to indicate that the city would convert Lintonia Park into a playground exclusively for school children. The full text of the ordinance is as follows:
‘ ‘ There came on for consideration at this, the regular adjourned meeting of this Board, the protests filed by Mrs. Claudia Wilson, and others, to the proposed action of the Board of vacating that part of Fourth Street between Webster Ave. and Jackson Ave. fronting on the newly erected Junior High School on the South and on Lintonia Park on the north. E. Gr. Cortright, Jr., repre*454senting the protestants, to said proposed action, presented to the Board a sworn statement by him that he asked to be made a part of the record, and asked that there also be filed with the Board as Exhibits to the protests the aforesaid petitions and a certified copy of a plat of Lintonia Addition to Yazoo City, Mississippi, Deed of J. F. Powell, et al, to Lintonia Land Company, and minutes of the Board, all of which were duly received by the Board and ordered filed with the Clerk as Exhibits.
“The City Attorney, representing the Board, offered as an exhibit before the Board, and asked to be filed in behalf of the Board, a copy of the site plan of the new Junior High School located on Lots 179, 180, 197, and 198 of Lintonia Addition, which lots front on the South side of that portion of Fourth Street lying between Webster Ave. and Jackson Ave. and which school also is located on Lots 178 and 199 of Lintonia Addition adjacent to the above lots and South of the above lots, which six lots constitute the area occupied by said Junior High School.
“THEREUPON, the remarks of any of the protestants present wishing to speak were heard and considered, and it was determined by the Board and admitted by the protestants that none of them were abutting property owners on that portion of Fourth Street proposed to be closed, and that the only abutting property owner thereon was the City, and that there were no abutting property owners on that portion of the alleys lying between the aforesaid lots of Lintonia Addition which the Board propose to close and vacate other than the City of Yazoo City. Various members of the City School Board who had requested the Board of Mayor and Aldermen to close and vacate said streets and alleys were present and stated their reason therefor as being in the interest of the safety of school children who would be endangered from traffic in crossing from the school grounds to Lintonia Park, it being’ anticipated that the Park would *455be attractive to the children at tbe school. After hearing the various parties present and the remarks of Mr. E. G. Cortright, Jr., representing the protestants, and those of T. H. Campbell, Jr., City Attorney representing the Board, the Board took up for consideration the proposed ordinance which was offered for consideration by Aider-man C. L. Graeber, Jr., which ordinance is in the following form, to-wit:
“AN ORDINANCE VACATING AND CLOSING THAT PART OF FOURTH STREET BETWEEN JACKSON AVENUE AND WEBSTER AVENUE, AND THOSE ALLEYS SITUATED IN THE BLOCK BOUNDED BY JACKSON AVENUE, WEBSTER AVENUE, THIRD STREET AND FOURTH STREET, EXCEPT FOR SUCH PARTS OF SAID ALLEYS AS LIE BETWEEN LOT 177 OF LINTONIA ADDITION AND LOT 200 OF LINTONIA ADDITION TO YAZOO CITY, MISSISSIPPI.
“WHEREAS, that certain block or square of land situated in Lintonia Addition to Yazoo City, Mississippi, and heretofore dedicated to and owned by the City as a park lies along the North side of that portion of Fourth Street of said City which lies between Jackson Avenue and Webster Avenue, and
“WHEREAS, along the South side of that portion of Fourth Street of said City lying between Jackson Avenue and Webster Avenue are situated Lots 179, 180, 197, and 198 of Lintonia addition owned by Yazoo City and on which, together with Lots 178 and 199 of Lintonia Addition, there has recently been erected and constructed a new Junior High School, and
“WHEREAS, the said City is the only abutting property owner upon that above mentioned portion of Fourth Street, and
“WHEREAS, those certain alleys within the block bounded by Jackson Avenue, Webster Avenue, Third Street, and Fourth Street, except for parts of said alley *456as may lie between Lots 177 and 200 of Lintonia Addition, lie between lots presently owned by tbe City and used for said Junior High School purposees, and
“WHEREAS, the said City is the only abutting property owner on that portion of Fourth Street above mentioned, as aforesaid, and is the only abutting property owner on that portion of the alley above mentioned, and
“WHEREAS, in the use of said new Junior High School, it appears to the Council, and the Council does hereby expressly find, that to leave the above mentioned portion of Fourth Street open to traffic, and to leave the above mentioned portion of said alley open to traffic will be extremely dangerous to pedestrians, and especially to school children, in traveling over, on, and across said portion of said Fourth Street and said portion of said Alley, and that it is to the best interest of the general public and in the public welfare that said portion of said street and said portion of said alley be closed and vacated;
“NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF MAYOR AND ALDERMEN OF YAZOO CITY, MISSISSIPPI IN COUNCIL CONVENED:
“SECTION 1. That that portion of Fourth Street of said City lying between Jackson Avenue and Webster Avenue, and those certain alleys located within the block bounded by Jackson Avenue, Webster Avenue, Third Street and Fourth Street, except for such parts of said alleys as may lie between Lot 177 of Lintonia Addition and Lot 200 of Lintonia Addition, be, and the same are, hereby vacated and closed.
“SECTION 2. That this ordinance take effect and be in force thirty days from and after this date as required by Law in this behalf.
“The foregoing ordinance, having been first reduced to writing and read and considered by the Board Section by Section, and then as a whole, was presented and its adoption moved by Alderman C. L. Gfraeber, and seconded *457by Alderman W. H. Brister, and adopted by tbe following vote:
“ALDERMEN VOTING AYE: Ross M. Turner, Tom
Hendrix, W. H. Brister and C. L. Graeber
“ALDERMEN VOTING NAY: None
“WHEREUPON, THE Mayor declared said ordinance adopted and passed this, the 2nd day of April, 1956.
“(Signed) Harry Applebaum,
Mayor
“ATTEST:
“(Signed) P. E. Maxwell,
‘ ‘ City Clerk
* * * *
We cannot attribute to the city authorities evil motives or that they were carrying out a “well planned scheme” to convert the park to a use inconsistent with the dedication. The ordinance does not convert the park to a playground exclusively for school children, and the city disclaims any intention to misuse the park. There is not a scintilla of evidence that the school or city intended to enclose the park or place any improvements thereon. The most that could be made of the case is that school children would play in the park. Is it a subversion of a public park for children to play there? Children are people, a part of the public.
III.
I think there is a misconception of what is before the Court on this appeal. We have for review an ordinance closing a portion of a street in order to provide for the safety and welfare of school children. The matter of the misuse of Lintonia Park is not at issue. The supposed misuse of the park is based on assumptions that do not appear to me to be justified from the ordinance.
*458IV.
Every case relied upon by those Judges voting to affirm the circuit court are cases brought and tried in a court of competent jurisdiction. Here we have a proceeding resulting in an ordinance closing a portion of a street as a protective measure for school children (a legislative matter) being converted by an appellate court into a judicial inquiry, not to determine legal rights in the park, but to hold invalid a legislative act of the city. I am unable to find a similarly developed case in the books. I would let the ordinance closing the street stand on its own feet and let the city take this protective measure for the school children, and if and when there is any misuse of the park, the courts are open to protect the rights of any and all persons. Thus every one would be accorded every protection provided by the law.
V.
I think that the decision holding invalid this ordinance is an unwarranted judicial interference in local affairs vested by law and common sense in the local authorities. Two of the principal functions of local authorities are the administration of the schools and the exercise by a municipality of its police power to provide for the safety and welfare of all the public, including the school children. The local authorities know and understand the multiple and complex problems arising in particular localities under particular conditions. We cannot know and understand these problems from a few printed pages of a bill of exceptions and a city ordinance. When the local authorities say, in effect, “We have a school with a street running under the windows, and across the street is an attractive park; and children are going to go to the park; traffic on this street will constitute a grave hazard to the children, and children will likely be injured in falling into the street or on the curbs or pavement; this street should be closed for the safety of the children”— *459I do not think that as a Judge I should he heard to say the city authorities do not know and understand what should be done to provide for the safety of the school children, or say to the city authorities that they do not really mean to protect the children, but are carrying out a scheme to subvert the public park.
YI.
The decision in this case results in an “extremely dangerous ’ ’ situation to children being maintained; yet nothing is gained. It accomplishes nothing in denying the right of the authorities to close the street for the protection of the school children.
The opinion of the circuit judge and the opinion of this Court recognizes the right in the city to block off that portion of Fourth Street between the school and the park during school hours. In the conferences, this right was recognized as an important factor in the decision.
So the school children will have exactly the same access to the park, and make the same use of the park, as they would if the street were vacated. So what is accomplished by declaring void the ordinance closing the street? One thing, and one thing only, will be accomplished, and that is that the Court has interposed its judicial power to prevent the city from removing a hazard to the children of the school. No rights are determined as to the use of the park. No right could be determined in such a proceeding as this. If those rights are to be judicially determined, it must be in a court of competent jurisdiction in a proper suit with suitable issues drawn.
For the reasons stated, I decline to share any responsibility for the affirmance of the judgment declaring the ordinance invalid.