I dissent. There are several propositions advanced in the majority opinion with which I do not agree and the determinative question in the case is not discussed at all. The majority opinion is bottomed upon a proposition not suggested in the briefs or oral argument of counsel and upon an issue not raised by the pleadings. Likewise the opinion, if sound in other respects, does not justify the conclusion reached. In other words, if no valid park board was appointed with power to govern and manage the park, recreational grounds and golf course, then the deed from the Poison Country Club to the city of Poison never became effective and hence the city has no interest in the property.
These questions will now be discussed briefly.
The pleadings do not suggest that the park board was not properly created or that it had no authority to lease the property. On the contrary, the complaint alleges that certain named individuals compose a city park board and this is admitted in the answer. No useful purpose would be subserved by setting forth the allegations of the complaint in detail. The prayer of the complaint shows clearly the purpose of the action. The prayer asks for an injunction restraining the defendants ‘ ‘ from operating or conducting a bar and bar room at, in and upon the premises herein involved * * * and from operating any slot machines at, in or upon said premises. ’ ’
Nowhere in the pleadings is it intimated or suggested that the park board was not duly created or that it had no authority to lease the lands involved. On the contrary, the record shows that no one is complaining of the operation of the golf course as such though operated by tlie lessee. The sole and only point raised is the right to sell intoxicating liquors on the premises and to operate slot machines thereon.
If the opinion written by Mr. Justice Bottomly is sound in holding that the park board has no valid existence and that *487it lias no authority to govern and manage the park, recreational grounds and golf course, then the deed to the city never became effective. One of the express conditions of the deed was the following: “This grant is made and accepted * * * upon further condition that the grantee herein will by ordinance or resolution create and provide a park board or commission, consisting of three members to be appointed by the Mayor of the city of Poison, one of whom shall be a member of the city council of the city of Poison, and the other two shall be members in good standing of the Poison Country Club, and that said Park Board or Commission shall be vested with power and authority to govern and manage said park, recreational grounds and golf course and to make reasonable rules and regulations for the use thereof by the public. ’ ’
The federal government was evidently satisfied with the conditions named in the deed or it would not have advanced the money for the improvements as it did. It evidently thought the law permits the creation of a park board or commission in any city, or town and that the right to do so is not restricted to a city of the first or second class.
We ought not now question the proceedings taken by the city of Poison to obtain money from the federal government, particularly when the parties to the action do not question those proceedings. But if we say those proceedings were invalid then the only conclusion which can be reached in the light of the conditions stated in the deed is that the Poison Country Club still owns the property and that the city has no interest therein.
I think we should do as the parties have done, i. e., treat the park board as a valid board with authority ‘to make the lease.
I think the park board was properly appointed. Mayors of cities of the second or third class, R. C. M. 1947, sec. 11-702 and of towns, R. C. M. 1947, sec. 11-703, may appoint such “other officers necessary to carry out the provisions of this title.”
And under R. C. M. 1947, see. 62-209, which was last amended by Chapter 71, Laws of 1945, all cities and towns regardless of size may pass ordinances for the “procurement, establishment, *488equipment, maintenance, regulation and operation of * * * playgrounds * * including the power to establish by ordinance a reasonable and uniform charge for the privilege of using the same. Said city or town council is further authorized in its discretion to place any or all of said institutions under the control and management of the board of park commissioners.” Also R. C. M. 1947, sec. 62-212, Ch. 71, sec. 2, Laws of 1939, authorizes the board of park commissioners to operate a program of public recreation independently or “with any "cooperating bodies in such manner as they may agree. ’ ’
I fail to see how section 36 of Article V of the Montana Constitution has any application to questions involved here. It provides : ‘ ‘ The legislative assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes, or to perform any municipal functions whatever. ’ ’
The legislature has not delegated to anyone the right to control the municipal parks and playgrounds. It simply has authorized cities and towns to place their management and control in the board of park commissioners. R. C. M. 1947, see. 62-209.
This the city of Poison did by ordinance pursuant to the terms of the deed. It accepted the deed subject to the conditions stated in it.
When the board of park commissioners acts with reference to the management and control of the city parks it is the city that is acting by and through its legally constituted board appointed for that purpose. The legislature did not delegate to any special commission power to interfere with any municipal function which section 36 of Article V prohibits, but simply by R. C. M. 1947, see. 62-209, authorized the city itself to manage and control its parks through its own park board if it cared to do so.
Of course this does not mean that the park board may divert the property to a use other than that contemplated by the trust.
If the property is proposed to be used for other than park, *489recreational grounds and golf course, then under the terms of the-deed it reverts to the grantor and a vote of the people would not alter this result. A vote of the people would not and could not change the terms of the deed.
E. C. M. 1947, sec. 11-964,' has to do with property held in trust for a specific purpose other than that acquired by a deed wherein there was a reversion clause.
The majority is in error in assuming that the city, by section 11-964 (5039.61), may effect a sale or transfer of this property for other than a park, recreational grounds and golf course upon obtaining a favorable vote of the people of Poison. Any attempt to use this property for purposes other than those contemplated by the deed, even by a vote of the people, would cause the property to revert to the grantor.
The rule is stated by McQuillin on Municipal Corporations, Vol. 3, 2nd Ed., see. 1244, as follows: “When it is said that a municipality may dispose of its property under certain circumstances, it generally refers to cases where no rights of the original grantor or donor of the property are concerned. If a person conveys land to a municipality for a certain definite public purpose, with a reversion if not so used, it cannot be diverted to another and different purpose not connected with the original dedication, since the public takes it in trust for the public purpose designated in the instrument of conveyance.”
In Bozarth v. Egg Harbor City, 89 N. J. Eq. 26, 103 A. 405, 409, the court stated the applicable rule as follows: “As defendant municipality took the fee to these open squares under a deed referring to that map and under the express condition that the avenues and public places so conveyed to it should forever remain public for the purposes they had been originally set apart and reserved, these implied covenants are necessarily enforceable against the proposed acts of the municipality which are designed to defeat the restricted use.
“It remains to consider the effect of the legislation already referred to.
*490“The act of 1890 is designed to discharge ‘the conditions, limitations, and restrictions’ contained in the deed.
‘ ‘ The act of 1915 is designed to authorize the sale by a municipality of land acquired by it for public use, when the land is no longer needed for such use.
“The question here involved does not include a consideration of the power of the Legislature to yield up the right of the public in land devoted to a public use by dedication. That power appears to be conceded in Trustees of Methodist Episcopal Church at Hoboken v. Mayor, etc., of Hoboken, 19 N. J. Eq. 355, and in Fessler v. Town of Union, 67 N. J. Eq. 14, 25, 56 A. 272. But, where private property rights exist in the nature of an easement touching the use of the land by the owner of the fee, it is obvious that no legislative power can disturb such rights. It is such a private property right that complainant herein asserts and that our Constitution protects.”
I disagree therefore with what the majority have to say on the question of obtaining a vote of the people of the city of Poison if, as the majority opinion seems to assume, the property is being used for purposes other than as a park, recreational grounds and golf course. Also if the sale of intoxicating liquor and the use of slot machines does not conflict with the use of the property for a park, recreational grounds, and golf course, then a vote of the people adds nothing. The precise point involved in the case and the only one presented is whether the grounds are being used for purposes other than those contemplated in the deed.
In considering this question it should be said at the outset that there can be no danger of the city losing the property because of the use made of the premises because if it is used contrary to the terms of the deed it is being done by the grantor itself and of course it would be estopped from claiming a reverter.
But I think plaintiff as a taxpayer and regardless of the question of estoppel has the right to raise the question as to whether the property is being used for purposes other than those contemplated in the deed.
In considering that question we must keep in mind that in this *491proceeding we may not determine whether any of the acts complained of constitute a crime. That issue, this court has repeatedly held and all parties concede, may not be determined in injunction proceedings.
Plaintiff takes the position that every use for commercial purposes is in violation of the restrictions in the deed. This is not the rule. In 39 Am. Jur., “Parks, Squares and Playgrounds,” sec. 23, p. 819, it is said: “Generally, it appears that licenses or special privileges in parks may be granted to individuals in proper circumstances where the exercise of such privileges is in furtherance of park purposes and is not inconsistent with the terms of the dedication. A statute authorizing a city to devote a park to any use tending to promote popular enjoyment and recreation empowers a city to grant to individuals for pay exclusive rights within a park to operate refreshment and lunch stands, and to rent boats, bathing suits, towels and dressing-rooms. ’ ’
And in section 24 the same author says: “Leases of portions of a public park for hotel purposes, for the purpose of selling refreshments, and for the establishment and operation of a race track, have been upheld as not inconsistent with the public use. The use of portions of public parks for agricultural purposes, zoological and botanical gardens, conservatories, and many other similar recreational and educational facilities, has also been held, in various instances, to be a proper and legitimate use. ’ ’ See also note 144 A. L. R. 487.
The Supreme Court of Missouri in State ex rel. Wood, Attorney General, v. Schweickardt, 109 Mo. 496, 19 S. W. 47, 51, held that the grant of a permit to sell intoxicating liquors in a park is not a diversion of the legitimate use of a park. The court in speaking of the question said: “It seems, too, to be a matter of common knowledge that refreshments, both solid and liquid, refreshments of an intoxicating nature, are customarily served to visitors of the great parks of this country, — Central park, New York; Fairmont park, Philadelphia; and Golden Gate park, in San Francisco. On this basis of fact and of custom it cannot be *492regarded as any diversion of tlie legitimate uses of the park to have refreshments served in the manner contemplated bj the ordinance and contract aforesaid. A park of the dimensions of the one in question, situate, some 4% miles from a great metropolis of half a million people; a park containing a territorial area of some 1,374 acres, — must be regarded as a little world in and of itself; one in which should be exhibited the same degree of charitable forebearance and toleration of the tastes and habits of others as is required in the larger world of current life. And, so long at the proprieties of life are observed, no one of the throng who visit such a locality has any grounds to insist that his method of conducting a park should be adopted instead of the plan deemed best by the regularly constituted authorities. Such intolerance, on whatever motives based, is at war with the theory and practice of our government and an enlightened civilization. Its voice should not prevail in a court of justice. And in this connection it should be constantly borne in mind that within the legitimate sphere of their authority the discretion confided to municipal corporations is as proportionately wide as is a like discretion possessed by the government of the state, and as free from outside interference; and that discretion is not subject to judicial revision or reversal. (Citing cases.) ’ ’
As to whether I would agree with all that was held in that ease and whether I think the same rule would permit the use of slot machines, I express no opinion since in my view the case should be remanded for further proceedings.
The reason I think the ease should be remanded for further proceedings is this: After the judgment was entered plaintiff’s counsel in submitting objections to exceptions made to certain findings, called attention to a city ordinance of the city of Poison prohibiting the sale of intoxicating liquor in or upon any park or public grounds.
A city may prohibit such sales if it so desires. Note in 105 A. L. R. 1052.
The difficulty on this score is that this ordinance was not pleaded and in fact it was not introduced in evidence. We are *493asked to take judicial notice of the ordinance. But this we may not do. Carey v. Guest, 78 Mont. 415, 258 Pac. 236; Dineen v. City of Butte, 83 Mont. 370, 272 Pac. 243.
The necessity of pleading it is apparent. The adversary may desire to question its validity. It may have been repealed by a later ordinance.
Other questions may arise regarding its applicability which defendants should have the opportunity to be heard on.
In my opinion the cause should be remanded for further proceedings with the right of plaintiff to plead the ordinance if he chooses to rely upon it.
Rehearing denied March 23, 1950.