I concur. My concurrence in that part of the foregoing opinion to the effect that the city may use for the purpose therein indicated portions of Whittier and Margaret Parks deeded to the city by the Great Northern Railway Company and the Great Falls Water Power Townsite Company, if the consent of these grantors or their successors in interest can be obtained, is based entirely upon the condition of the statutory law of Montana when those deeds were executed. At those times the statutes provided, without any limitation or qualification, that public grounds might be vacated by city councils. But for that provision, the general public would probably, under the majority line of decisions, have received such permanent park rights, at least in the donated land, that neither the original grantor, its successors or assigns, on the one hand, nor the general public, on the other hand, down to the remotest times, could have divested them except, perhaps, by the power of eminent domain. Even though by reason of changing conditions, the land in question should become utterly worthless for park purposes, or worth more to every interested party for other purposes, or though the city became unable financially to maintain it for park purposes, or even became a ghost town, there might be no remedy for an impossible situation.
Manifestly it was the purpose of the legislature to prevent this irrevocable and eternal limitation of certain land to a particular purpose regardless of changing conditions, and the words used were admirably adapted to the end. The legislature could, if it desired, have limited this right of vacating public grounds to land dedicated by the public, rather than by an individual; *Page 457 but it failed to do so, probably because there is no more sense in perpetuating a futile or useless situation in one instance than in the other. Certainly, the matter was one of public policy, and upon it the legislature has spoken.
In the dissenting opinion it is said: "It is fundamental that parties may contract waiving their statutory rights unless prohibited by public policy." The argument is that the authority to vacate the park was a mere right in the city council, which the latter could waive, and did in fact waive, by accepting the deeds in question. But that authority was not the personal right of the city council as then constituted, or of the city as an entity, which either might waive for all time; it was merely a public power entrusted to the city council for the benefit of the general public, and the council could no more waive it with reference to a private dedication, than it could with reference to a public one.
I know of no principle of constitutional law under which official powers can be waived by private contracts, either as to the official body as then constituted, or as to that body in perpetuity, however constituted. But if there were a mere statutory right, rather than an official power, it could still not be waived, because such waiver would be clearly against public policy, as expressed by the legislature. In the words of the dissenting opinion: "The utterances of the legislature are the declaration of the policy of the state." (Citing a Montana case.)
The question is not whether the city council can use the land for other than park purposes; the question is merely whether it can vacate the park. Its use of the land for other purposes will then depend entirely upon further authority from the original grantors or their successors in interest, as set forth in the decision of the court below.
The dissenting opinion regards the making, giving and acceptance of each of the deeds as a contract that the statutory power to vacate the park will never be exerted. I can accept that theory, neither upon the law as outlined above, nor upon the facts. *Page 458
Nor can I agree that the enforcement of the statute, which existed when the deeds were made, constitutes any breach of trust. The deeds were made with knowledge of the law; they were accepted by the city with knowledge of the law; the public acquired its rights under them with knowledge of the law. Under the statute both the donors and the city were powerless to thwart the legislative grant of power to the public, exercised through the city council, to vacate parks or other public grounds if it thought best; and the trust was necessarily subject to that statutory provision.