(dissenting):
I agree with the law as set out in the majority opinion. However, applying that law to the facts as set out in the plaintiff’s complaint, the trial judge was correct in granting the motion for summary judgment.
Two statements made in the majority opinion are determinative of this case. They are as follows:
“It is apparent that art. 3, § 19, par. 7, of our Constitution is premised on the policy that the legislature should not be allowed to carry out special projects on lands ‘ * * * not owned by the state.’
“We therefore hold that art. 3, § 19, par. 7, does not prohibit the legislature from establishing state parks on lands owned by the state.” (Majority opinion, p. 1304).
The fact that the plaintiff State of Idaho is seeking to condemn the lands in question from the defendant is an admission that the state does not own the lands and therefore they must acquire them by condemnation. Therefore, if Chapter 125 of the 1971 Session Laws does grant power to the state to condemn the land in question, it is authorizing the condemnation of land not owned by the state, and therefore the statute comes within the prohibition of Article 3, § 19, paragraph 7.
The plaintiff’s complaint specifically points out that the land in question was originally owned by the state, and was condemned by Boise City and the County of Ada for public use, namely for the extension of Curtis Road. Plaintiffs by their complaint are seeking to re-condemn the exact same land which was condemned initially by the defendants from the state in Civil Action No. 42500 in the Fourth Judicial District Court. See our previous decision in County of Ada and Boise City, plaintiffs, v. State of Idaho, defendant, 93 Idaho 830, 475 P.2d 367 (1970). Since the land is now held by the defendants, Boise City and Ada County, as a “public use,” i. e., extension of Curtis Road, it is, in my opinion, a “public road” within the meaning *385of Chapter 125 of the 1971 Session Laws. In defining the property with which the act purported to create the Idaho Veterans Memorial Park, there was specifically omitted from the description of the park the following:
“Except ditches, laterals, public roads.” As a result of the initial condemnation action in Civil No. 42500, the property became the right of way for the Curtis Road extension, and thus a “public road.” On the face of the complaint the plaintiffs have shown that the particular property proposed to be condemned by the state is specifically exempted from the legal description of the Idaho Veterans Memorial Park, and therefore Chapter 125 of the 1971 Session Laws does not even apply to the property which was previously condemned by the defendants in Civil No. 42500, Fourth Judicial District Court, County of Ada, in which the defendant and Boise City originally acquired the road right of way in question.
Therefore, based upon the facts set out on the plaintiff’s complaint, the defendants were entitled to a motion to dismiss the complaint for failure to state a cause of action because (1) the lands sought to be condemned were excluded from Chapter 125 of the 1971 Session Laws because they constitute a “public road; ” and (2) if they were not, the complaint purports to condemn land not owned by the state and therefore was special legislation in violation of Article 3, § 19, paragraph 7, Idaho Constitution.
The majority opinion acknowledges this analysis in view of the statement on page 1305:
“The trial court has not determined whether in fact the property sought to be condemned is included within the metes and bounds description of the property described in Ch. 125. Further, if the property sought to be condemned is a ‘public road’ which is excepted from the metes and bounds description then there may well be serious question whether Ch. 125 authorizes the State to condemn the property sought herein.”
There are no facts to be resolved in view of the manner in which plaintiff has pleaded its cause of action, and if there is any question over the meaning of “public roads” as used in Chapter 125 of the 1971 Session Laws, this Court must make the final determination of what those words “public roads” mean.
There is no reason to remand this matter to the trial court. The motion for summary judgment should be affirmed.
McQUADE, J., concurs.