The power of the Legislature is ample to regulate public squares and all public places, provided the uses and purposes of the dedication or grant are not changed. (See Schumeier v. St. Paul & P. R. R. Co. , 10 Minn. 104-5, etc.; Le Clerq v. Gallipolis, 7 Ohio, 217; Brown v. Manning, 6 Ohio, 298; Com. v. Rush, 14 Penn. State Rep. 188-9; Com. v. Bowman, 3 Burr, 206.)
In Com. v. Bowman, it was held that the right to put a court-houseand offices on a public square was only legal by reason of usage; for the square was a highway, and neither the county nor the public could block it up to the prejudice of a public or individual.
A contract to build a school-house on such a square would then be illegal and void, and no recovery could be had on such a contract, nor could a recovery be had for breach of such a contract. (5 Robinson's Pr. 398, and cases there cited; Id. 407-8 et seq.; Valentine v. Stewart , 15 Cal. 387.)
OPINION By the Court:
The Board of Education had no authority to appropriate Hamilton Square, or any portion thereof, as a site for the proposed high school. The purposes for which the public squares may be used are those defined by positive law, and the erection of school-houses thereon is not one of these purposes. The resolution of the Board of Supervisors assuming to authorize the Board of Education to appropriate a portion of this square for that purpose, though passed in due form, was inoperative, because the Board had no authority to devote a public square to that purpose.
The contract of the Board of Education, upon which the suit is founded, was consequently ultra vires in the extreme sense, and the plaintiff could derive no rights thereunder, since he was bound to take notice that the Board of Education could not, under any circumstances, acquire a right to occupy a public square for school purposes.
Order granting a new trial affirmed.