I concur in the conclusion reached in the principal opinion, but upon slightly different grounds. As I understand the opinion, it is determined that the Park and Boulevard Act was abrogated by the adoption of the charter, because the charter itself contains a provision authorizing the supervisors to do the same thing authorized by that act. In other words, the purchase of lands for parks and boulevards, and the issuance of bonds, is a "municipal affair," because it is authorized by the charter itself. To sustain this proposition, reliance is placed entirely upon section 29 of article XVI of the charter, which is an article entitled "Miscellaneous," and is made up of explanatory and supplemental provisions. Section 29, as I understand it, merely provides for a possible contingency, — to wit, when, in pursuing its lawful authority, the board proposes to acquire permanent municipal improvements, it finds that the cost will exceed the annual revenue, it may issue bonds. Whether it may acquire the particular improvement or expend municipal funds for that purpose is not determined at all by that section. To answer this question, which was the main matter discussed by counsel, other charter provisions must be considered. Surely, it was never *Page 380 doubted that if these lands could be acquired under the charter, bonds could be issued therefor under section 29. As I understand the controversy, the Park and Boulevard Act was relied upon because the city authorities were of the opinion that the municipal charter, of itself, did not authorize the purchase of the lands for that purpose. And since the charter specifies a great many public municipal improvements which the supervisors and the board of public works may acquire, and does not specify parks and boulevards, there is some ground for such belief.
Subdivision 12, chapter II, article II, certainly does not, of itself, unaided by other provisions, authorize the board of supervisors to purchase lands by condemnation for a public park. Surely, it was not intended to confer power to purchase by condemnation, when the board could not purchase without condemnation, if the owner would sell for a fair price. It does not authorize the board to purchase lands for a purpose for which they could not have purchased without this authority. It authorizes the proceeding to condemn only when the owners are unwilling to sell, or demand an exorbitant price. The public uses referred to are those defined in other sections. Can it be contended that it was intended to throw the door wide open, and authorize such purchase for any use which might be deemed public? To acquire lands for a race-track or a beer-hall, or perhaps for a hotel, might be deemed a public use. The reference emphasizes my proposition that the doctrine of this opinion is, that the only limitation on the power of the board is, that, in the opinion of the board, the public interest require the acquisition of the improvement. The professed policy of the advocates of the new charter was, not to leave the gates ajar.
From my point of view, it is not necessary to determine whether the municipal charter authorizes the purchase of lands for park and boulevard purposes. If it does authorize such purchase, plainly, as determined by Mr. Justice Garoutte, the procedure there prescribed has not been followed. If such power is not found in the charter, it is my opinion no general law can add that provision to the charter. I do not comprehend how it can be said that a statute which confers upon a city council additional powers over affairs of the city, — powers which have always been deemed municipal, and only concern the city as such — which *Page 381 authorizes the city to incur an indebtedness of four millions of dollars, and which makes necessary a large annual expenditure by the city forever thereafter, is not a municipal affair. If a general law having such effect is not prohibited by section 6, article XI, of our constitution, then language has lost its force, and nothing has been accomplished by this long struggle and many amendments to the constitution for the purpose of preventing legislative interference with municipal affairs.