THE PLAN OF CHICAGO: THE RESULT OF SYSTEMATIC STUDY: THE COST
INVOLVED IN CARRYING OUT THE WORK: THE PEOPLE ARE FINANCIALLY ABLE TO
REALIZE THE PLAN: THE ELEMENTS INVOLVED: HOW THE COST MAY BE DIVIDED:
THE FINAL RESULT.
The plan of Chicago as presented in illustration and text is the result
of a systematic and comprehensive study, carried on during a period of
thirty months, with the sole purpose of mapping out an ideal project
for the physical development of this city. Perfection of detail is not
claimed, but the design as a whole is placed before the public in the
confident belief that it points the way to realize civic conditions of
unusual economy, convenience, and beauty.
It is fully realized that a plan calling for improvements on a scale
larger and more inclusive than any heretofore proposed seems, on first
consideration, beyond the financial ability of the community. If,
however, the plan meets public approval, it can be executed without
seriously increasing present burdens. The very growth of the city,
creating as it does wealth greater than mines can produce, gives a
basis of bond issues in excess of the utmost cost involved in carrying
out this plan. The increase in the assessed value of real estate in the
city of Chicago for the past ten years exceeds the expense required to
put the plan into execution; and at the same time the very character of
the proposed changes is such as to stimulate the increase in wealth.
The public, therefore, has the power to put the plan into effect if it
shall determine to do so.
It is quite possible that some revision of existing laws may be
necessary in order to enable the people to carry out this project;
but this is clearly within the power of the people themselves. The
realization of the plan, therefore, depends entirely on the strength
of the public sentiment in its favor. And what hope is there that the
people will desire to make Chicago an ideal city? A brief survey of the
past will help to form an opinion on this subject.
Sixty years ago, when Chicago was scarcely more than a village, it
became apparent that in order to secure proper drainage the street
levels must be raised to a considerable extent throughout what we
know as the old city, from the main river to Twelfth Street, and also
for a distance on the West and North Sides. This project, albeit a
very formidable one for that time, was promptly entered upon and
duly carried out, although it involved raising all the streets and
most of the buildings throughout that large territory. For that
day and generation the undertaking was much more serious than the
reconstruction of the city thoroughfares now proposed.
Again, some fifty years ago, when the idea of creating great
metropolitan park areas was new, Chicago undertook to acquire and
improve a chain of parks surrounding the city on three sides. This
scheme, which has well supplied the needs of Chicago until recent
times, was carried out in such a manner that it never was burdensome.
The creation of a park system for Chicago was not undertaken from
motives of utility, but purely because of a desire to make the city
attractive; and the success was magnificent.
Later, in the Eighties, the purification of the water of Lake Michigan
by the diversion of the sewage became a public issue. Once again the
people of Chicago rose to the occasion; and after years of hard work
the Drainage Canal, built at a cost of $60,000,000, has been completed.
Next came the World’s Fair, in the early Nineties, and here also a
result was accomplished which has never been surpassed either in scope
or in architectural beauty. The cost of the Fair (over $20,000,000 for
grounds and buildings alone) was very large for that day. The fact that
the Fair came into being here indicated that this people, generally
regarded as a commercial community, were deeply appreciative of the
higher forms of good order and municipal beauty.
The Chicago World’s Fair, like the raising of the grades of the
city, the creation of a complete system of parks and boulevards, and
the building of the Drainage Canal, went far beyond anything of the
same kind ever before undertaken by a city. These four works are the
greatest ones which have been achieved by Chicago. They have proved the
readiness of the people to take up large schemes of public improvement
which at the time of their inception required great foresight and
great faith in the future. Two of them were demanded by considerations
exclusively practical, while the other two were not so regarded, but on
the other hand were the expression of the deeper sense in man of the
value of delightful surroundings. If an accurate statement of the costs
of the four improvements could be made, it would probably show that
about equal sums have been spent on the practical and on the æsthetic
side.
Besides the public enterprises mentioned, the people of Chicago,
either collectively or as individuals, have established many agencies
for the improvement of the intellectual, social, moral, and æsthetic
conditions. The Chicago Orchestra occupies land and buildings on
Michigan Avenue which have a present value of over a million and
a quarter of dollars; and during the past twenty years private
subscriptions have amounted to at least another million, all expended
for an organization purely artistic. The Art Institute building in
Grant Park cost $700,000, and since its completion, in 1893, it has
never been closed for a day. Besides its large and excellent art
school, there is a good collection of the works of old and modern
masters, which is constantly receiving additions. The Crerar Library
has an endowment fund of three and a half millions, besides a
substantial building fund; and the Newberry Library and the Armour
Institute of Technology are other worthy public benefactions.
Especially notable are the educational foundations which contribute so
largely to the intellectual life of the city, and exert an influence
throughout the Middle West,—Lake Forest University, Northwestern
University, and the University of Chicago. The last-named institution,
established in 1892, has already taken its place among the foremost
universities in this country, not only by reason of its endowment and
property (representing more than $23,000,000), but also because of wise
administration along a well-considered plan.
Quite in accord with the plan of Chicago is the Benjamin Franklin
Ferguson Monument Fund of a million dollars, the income of which is
available for defraying the cost of statuary commemorating worthy men
and women of America, or important events in American history, to be
erected in the parks and boulevards of the city, under the direction of
the trustees of the Art Institute. The Field Museum, representing gifts
aggregating $9,000,000, is a further instance of loyalty to the city
and a desire for its improvement.
Such enterprises and such gifts as those enumerated show what may be
expected from individual benefactions as wealth increases and the idea
of public service is encouraged. When opportunities for enriching the
city are provided, individual citizens rise to the occasion, and find
true satisfaction in leaving memorials useful or agreeable to the
people.
Mere increase in numbers does not warrant the belief that public
sentiment in favor of extensive public works will grow in proportion
to the population; but the history of the past does prove that the
people of Chicago are always ready and anxious to follow when the way
to great benefits is plainly open. We believe that the tendency which
the community has shown by its acts points hopefully to the adoption of
a great scheme of public improvement. In other words, Chicago having
already carried out large projects strictly on the lines of this
report, may we not, therefore, confidently expect this people to go on
doing as they have done?
There is a still stronger reason for the belief that the public will
favor such a plan as is herein presented. It lies in the growing love
of good order, due to the advance in education. Every one knows that
the civic conditions which prevailed fifty years ago would not now be
tolerated anywhere; and every one believes that conditions of to-day
will not be tolerated by the men who shall follow us. This must be so,
unless progress has ceased. The education of a community inevitably
brings about a higher appreciation of the value of systematic
improvement, and results in a strong desire on the part of the people
to be surrounded by conditions in harmony with the growth of good
taste; and as fast as the people can be brought to see the advantage
to them of more orderly arrangement of the streets, transportation
lines, and parks, it is well-nigh certain that they will bring
about such desirable ends. Thus do the dreams of to-day become the
commonplaces of to-morrow; and what we now deem fanciful will become
mere matter-of-fact to the man of the future.
If the plan as a whole be approved by the majority of our citizens
because it is found to be both practical and beautiful, the next
question is as to what it commits us. In answering this query a general
review of the principal elements composing the plan will be of value.
The following list comprises the main items:
_First._ The improvement of the Lake front.
_Second._ The creation of a system of highways outside the city.
_Third._ The improvement of railway terminals, and the development of a
complete traction system for both freight and passengers.
_Fourth._ The acquisition of an outer park system, and of parkway
circuits.
_Fifth._ The systematic arrangement of the streets and avenues within
the city, in order to facilitate the movement to and from the business
district.
_Sixth._ The development of centers of intellectual life and of civic
administration, so related as to give coherence and unity to the city.
The improvement of the Lake front from Winnetka to the Indiana line is
an economic necessity. As has been stated, the aggregate of the waste
material seeking dumping ground on the Lake shore because that is
the cheapest place to deposit it, is not less than one million cubic
yards per annum. This material is sufficient to produce annually from
twenty-seven to thirty acres of land if used to build the Lake parkways
and park strips herein recommended. The park authorities would only
have to furnish breakwaters and bridges and to finish the grounds.
The utilization of this material in thirty years would produce all
the Lake front land recommended in the report for the region between
Grant and Jackson parks. But long before the expiration of the thirty
years the amount of filling urgently seeking the Lake front dump will
be enormously increased. This dirt should be utilized for the public
benefit, instead of being wasted as at present in the open Lake, where
it becomes detrimental to health and an interference to navigation.
The dirt to be disposed of in building new traction tunnels under the
principal streets of the city will go far toward the completion of the
new Lake shore parks. It is evident, therefore, that this improvement,
involving the redemption of the entire Lake front from Winnetka to
the Indiana state line, and the creation of an extremely beautiful
and useful public recreation ground, will involve very little public
expense. There can be no doubt that this part of the plan of Chicago
will be carried through; and in fact much is already being accomplished
along these lines.
The interurban highway system can be realized very cheaply. Ninety-five
per cent of the necessary roads now exist as public highways, and the
cost of acquiring the other five per cent will be merely nominal. The
diagram (Plate XL) is laid out with a radius of approximately sixty
miles from the city hall. The cost of widening that comparatively small
portion of the roadways which require to be widened; the straightening
of the few which need such treatment; the planting of trees along the
highways; and the macadamizing of the roads are improvements that may
be hastened by concerted intelligent action. The expense involved is
comparatively small, but the economy and convenience to the public are
very large. Is it not evident that this portion of the plan can be
realized at no distant day provided a strong organization of active men
shall be formed for the purpose of carrying it into effect?
The suggestions in regard to trunk lines, their rights-of-way,
stations, and general conditions, are many and serious. The suggestions
have been made for the purpose of bringing about the greatest economy
of money and time, both in freight and passenger handling. If the
recommendations herein contained will produce conditions really
beneficial to the individual shipper and passenger, undoubtedly they
will be found best for the railroads themselves. The direct object
in view is to free a large portion of the South Side from tracks and
stations and restore it to business use; to double the capacity of
the streets of the whole city by opening circulation to the north,
west, and south, and by connecting the outlying parts in the best
possible manner with the heart of the city. Over and above all these
considerations, highly important as they all are, is economy in the
freight handling of Chicago as a shipping center. The object here has
been to find that general principle which, if applied, will give to the
merchants, manufacturers, and jobbers of this city all the advantages
that should naturally be theirs throughout the great territory
dominated by Chicago. If the general scheme herein proposed shall not
be adopted by the public and the railroads, some other inevitably
must be, because the very life of the community is involved in the
solution of this problem. The commercial prosperity of the community
is represented by the cost per ton of handling freight into and out
of this territory as a shipping center. General changes in railroad
conditions take years to accomplish. That will be the case if such a
scheme as we recommend is carried out; but the public should remember
that they will not be taxed to pay for it. When these improvements come
they will be railroad enterprises, undertaken by the railroads and
carried out by the railroads.
The traction recommendations contained in this report are already in
progress, and no question need be raised as to whether or not this
portion of work will be carried out. It has practically been decided
upon, and no doubt will be accomplished. The cost will be borne in part
by the traction lines themselves, and partly by the public.
The additional parks and parkways recommended are extensive, as should
be the case. Although it is true that the men of forty years ago did
devise a scheme which has been sufficient almost up to the present
moment, it is also true that the number, location, and arrangement of
the parks and parkways of Chicago to-day are entirely inadequate for
its future development; and nothing is suggested in this report except
what has seemed to be absolutely required. Fifty years ago, before
population had become dense in certain portions of the city, people
could live without parks; but we of to-day cannot. We now regard the
promotion of robust health of body and mind as necessary public duties,
in order that the individual may be benefited, and that the community
at large may possess a higher average degree of good citizenship. And
after all has been said, good citizenship is the prime object of good
city planning. In some locations parks and parkways are sufficient
to accommodate the people in the immediate neighborhoods; other
sections of this city, and suburbs which will soon become parts of
this city, should be equally well provided. “Nature,” says President
Charles W. Eliot, “is the greatest factor in the continuous education
of man and woman.” The extensive woodlands proposed are an addition
not usually designed for American cities, although almost invariably
used in Europe. The cost of these added parks and woodlands will be
considerable, and it must be borne by the public; but it is a sane
proposition that the people of Chicago and its suburbs should have the
sixty thousand acres of wooded territory as well as the great Bow,
(Plate CIII) which will occupy from six to eight hundred additional
acres. The acquisition and completion of an outer park system may
easily be carried through in ten years; and if the cost shall be
distributed over that period of time, it will not prove burdensome. The
returns will come in the shape of increase of health and joy of living
for all the people; and incidentally the value of every real estate
holding in the city will be enhanced.
The land necessary for the civic center should be secured at once,
while values at the point proposed are reasonable. For the time being
this land may be treated as park space; but the sites and the general
scheme of grouping for the buildings should be approved, so that as
the city, the county, and the general government outgrow their present
structures, the new ones may take their appointed places, each one
contributing its part to an orderly and convenient scheme. The adoption
of such a scheme would save a very large amount of money in the
purchase of public building sites; and would create stability in real
estate values. To the West Side especially the development of a civic
center along the lines indicated is a matter of prime importance; for
it will give to that portion of the city the needed impetus towards
higher standards than now prevail there. At the same time it will
benefit all other parts of the city, since it is for the advantage of
Chicago as a whole that each portion shall be developed equally with
every other portion. The cost of the civic center should be paid by the
whole community.
The street plan as laid out involves a very considerable amount of
money; but it will be found that in Chicago as in other cities, the
opening of new thoroughfares, although involving large initial expense,
creates an increase in values, due to increase in convenience and the
provision for adequate sites for the increasing retail traffic of
the city. The cost will amount to many millions of dollars, but the
result will be continuous prosperity for all who dwell here; and such
prosperity the city cannot have unless it becomes a convenient and
pleasant place in which to live.
Finally, it seems probable that the schemes of outer highways and of
all the Lake front improvements may come about quite naturally and with
very little expense to the city; that the railways will pay most of
the expense of their changes and improvements, thus leaving a portion
of the cost of the traction system and all of the cost of the civic
center, of the parks and parkways, and of the street development for
the general public to meet. The community has ample financial ability
to do its part without placing undue burdens upon the people. Paris
had not much more than half a million people, and her commercial
prospects were far less than are ours to-day, when that municipality
adopted a street improvement scheme involving over two hundred and
sixty million dollars, and carried it to completion in thirty-five
years. The motive of the French people in undertaking this enterprise
was to create a great attraction for all men: a city so delightful as
to insure continuous prosperity to the inhabitants. The success of
the undertaking has amply justified the pains and the expense. People
from all over the world visit and linger in Paris. No matter where
they make their money, they go there to spend it; and every proprietor
and workman in Paris benefits by reason of that fact. Conditions in
Chicago are such as to repel outsiders and drive away those who are
free to go. The cream of our own earnings should be spent here, while
the city should become a magnet, drawing to us those who wish to enjoy
life. The change would mean prosperity, effective, certain, and forever
continuous.
If, therefore, the plan is a good one, its adoption and realization
will produce for us conditions in which business enterprises can
be carried on with the utmost economy, and with the certainty of
successful issue, while we and our children can enjoy and improve life
as we cannot now do. Then our own people will become home-keepers, and
the stranger will seek our gates.
[Illustration: CXLII. THE GREAT LAKES.
From the group by Lorado Taft.]
LEGAL ASPECTS OF THE PLAN OF CHICAGO
The following opinion, prepared by WALTER L. FISHER, as counsel for the
Plan Committee of the Commercial Club, has been submitted to EDWARD J.
BRUNDAGE, Corporation Counsel for the City of Chicago, HARRY A. LEWIS,
County Attorney of Cook County, BENJAMIN F. RICHOLSON, Attorney for
the West Chicago Park Commissioners, CHARLES A. CHURAN, Attorney for
the Commissioners of Lincoln Park, ROBERT REDFIELD, Attorney for the
South Park Commissioners, to EDGAR B. TOLMAN, FRANK L. SHEPARD, HARRY
S. MECARTNEY, FRANK HAMLIN, and R. P. HOLLETT, who have been counsel
for these official bodies, respectively, and to MILTON J. FOREMAN,
Member of the City Council of Chicago, and GEORGE A. MASON, Special
Assessment Attorney for the City, all of whom concur in the conclusions
and recommendations stated. WILLIAM W. CASE assisted in the preparation
of the opinion.
LEGAL ASPECTS OF THE PLAN OF CHICAGO
BY WALTER L. FISHER, OF THE CHICAGO BAR
INTRODUCTORY
The purpose of an inquiry into the legal aspects of the Plan of
Chicago is to ascertain to what extent and in what manner the Plan can
be carried out under the existing laws, to suggest such additional
legislation as may be necessary or desirable, and to consider how far
such legislation is controlled or prevented by existing constitutional
provisions. It is gratifying to be able to state at the outset that
the main structure of the Plan of Chicago is framed with due regard
to the limitations imposed by law upon public enterprises, although
important details cannot be carried into effect without some aid from
the legislature.
In considering the legal aspects of city planning in the United States,
the first inquiry naturally relates to the limitations contained in
the state and federal constitutions. Governmental powers in the United
States, unlike those of many European countries, are defined by written
constitutions, which would undoubtedly prevent the imitation here
of some of the sweeping undertakings and arbitrary though effective
methods of European city planning. European governments have carried
to a successful issue many wide-reaching reforms which could be
undertaken in this country only with important modifications. It is
these modifications with which we are chiefly concerned. A Prussian
statute enacted in 1902 empowered the police authorities to prohibit
advertising which was calculated to disfigure the landscape;[27] and
a provision of the Prussian Code declares that no building shall be
so erected as to disfigure cities and public places.[28] Regulations
intended to maintain the suburban character of certain localities
have been upheld in Prussia, in the absence of statute, as sanitary
measures within the jurisdiction of the police authorities, and in
other German cities they are authorized by law.[29] The State of
Illinois, in attempting to follow such examples, would be obliged to
reckon not only with that provision of her own constitution which
forbids the taking of private property for public use without just
compensation, but also with that other provision, found both in her
own constitution and in that of the United States, which declares that
no person shall be deprived of property without due process of law.
In England, as long ago as 1862, the Metropolitan Local Management
Act authorized the Board of Public Works to fix building lines to
which all new buildings must conform, and to prohibit the erection
of any house beyond the general line of buildings in any street in
which the same is situated.[30] Compensation is allowed to any owner
of property who can show himself to be injured by such restrictions
upon the use of his land, but the parliamentary fiat determines
forever that he must submit to the regulations thus imposed upon
him. In this country the owner, even if compensation were provided,
could demand the judgment of a court whether the use for which his
property was taken was a “public use,” within the judicial definition
of that phrase as found in our constitutions. In Illinois he could
insist upon his further constitutional privilege of having his
compensation fixed by a jury before the restriction became operative.
The public authorities of Paris, when condemning land for municipal
purposes, were authorized to and did take more extensive areas than
were actually needed, seeking by this means to recoup the cost of the
improvements by selling the adjacent premises at the enhanced values
produced by these improvements. Indeed, the contractors for these
public works were themselves authorized, in some cases, to acquire
considerable areas outside the lines of the actual improvement, so
that the prospective profits thus to be realized might be deducted
from the cost of the improvement to the public.[31] Governments in
this country are forbidden by constitutional principles thus to take
private property against the will of the owner merely for pecuniary
profit. Many cities in Great Britain and on the continent have removed
the entire population of insanitary districts and have constructed new
dwellings, at public expense, in the renovated area. Such features
figure largely in the town-planning schemes of Europe, but have been
considered inexpedient or unnecessary here. The town-planning bill
introduced in Parliament last year by John Burns not only confers power
upon municipal authorities to impose a town-planning scheme on any land
within or near their boundaries, but enables the authorities to take
judgment against the owners of neighboring property for the amount by
which its value is enhanced through the operation of the plan. Such
methods of procedure, however justifiable from an economic point of
view, would be contrary to established public policy in this country.
The constitution of Illinois requires uniformity of taxation with
respect to both persons and property, and while it permits the cost of
local improvements to be assessed by the authorities of cities, towns
and villages upon property specially benefited thereby, it not only
limits the aggregate amount of such special assessments to the cost of
the improvement, but requires the distribution of that aggregate over
all property similarly benefited.
While, therefore, in every civilized country the makers of laws strive
to protect private property and private rights from spoliation and
abuse, it remains true that extensive municipal and governmental works
are more quickly and easily executed in those parts of the world where
the legislative authorities have a free hand than they can be under
a system of rigid constitutional restraints. Those vast projects
which have created the modern city of Paris and are transforming
London and many continental cities would necessarily follow different
channels in this country; yet there is every reason to believe that
the constitutional limitations which here determine the form of public
improvements do not really prohibit any measures that in this country
would be considered wise. It will be found that the restraints of the
fundamental law under which we live do not forbid any of the steps
recommended in the proposed Plan of Chicago, although in many important
respects they do fix and control the manner in which, and the means
by which, these steps can be taken. The state, and its agent, the
municipal corporation, are fully empowered to protect and to promote
the public welfare, and for that purpose have been vested with the
three great functions of government known as the police power, the
power of eminent domain, and the power of taxation, in one or another
of which will be found adequate authority for the accomplishment of the
Plan.
The police power has been characterized by the Supreme Court of
Illinois as “that inherent plenary power in the state which permits
it to prohibit all things hurtful to the comfort, welfare and safety
of society.”[32] Avoiding too rigid an exactness of definition, the
courts have described it in terms which are said to be summed up in the
statement that “the police power, in its broadest acceptation, means
the general power of a government to preserve and promote the public
welfare by prohibiting all things hurtful to the comfort, safety and
welfare of society, and establishing such rules and regulations for the
conduct of all persons, and the use and management of all property,
as may be conducive to the public interest.”[33] It is only under the
police power that men can be required to submit to the destruction or
appropriation of their property without monetary recompense for the
loss.[34]
In the exercise of the power of eminent domain, the state may take
private property, but only for a “public use” and only upon payment
of just compensation. No man can, in this country, be required to
surrender his property, even for full value, unless the use for which
it is taken is public. The right assumed by some European governments
to condemn large areas of land in order, by selling part of it, to
defray the cost of improving the rest, would be subject in this country
to the inquiry whether such a purpose is “public,” within the meaning
of that term as expounded by the courts. No judge grounded in the
principles of American jurisprudence would countenance the argument
that mere pecuniary advantage to a municipality could, without other
pretext, justify the taking of private property against the will of the
owner. It is quite another question, however, whether the condemnation
of more land than is directly involved may not be justified as an
incident of a public improvement, when it could not be defended as an
independent speculation.
The last of the three governmental powers mentioned is the power of
taxation. Like the power of eminent domain, it is inherent in every
sovereign state, but no taxes can be levied for other than public
purposes. They may be general, representing the tribute due from every
person to the government which protects him; or special, measured or
limited by the particular benefit accruing to his property from a local
improvement. The cost of public works may be paid for outright from the
proceeds of a single levy or assessment, or may be defrayed from the
proceeds of bonds to be liquidated by annual contributions distributed
over a term of years. The constitution of Illinois requires provision
to be made for paying all municipal bonds within twenty years, and
limits the amount of indebtedness which any municipal body may incur to
five per cent of the assessed value of taxable property therein; but
does not impose any general limitation upon the amount or rate of taxes
which municipal bodies may be authorized to levy.
Such is a brief characterization of the three functions of government
upon which chiefly depends the execution of public enterprises in
this country. The Plan of Chicago, now under consideration, embraces
as its leading features the acquisition, maintenance, and control
of parks, boulevards and arteries of communication throughout the
metropolitan territory tributary to Chicago; the establishment and
control of similar parks, circuits and avenues within the city itself,
and incidentally the reclamation of slums and congested areas; the
embellishment of the shore of Lake Michigan; the consolidation and
rearrangement of freight and passenger terminals; and the creation of
a Civic Center connected with other parts of the city by convenient
avenues, and in or about which shall be grouped important public
buildings which may hereafter be erected.
OUTER PARKS, BOULEVARDS, AND CIRCUITS
The outer belt of parks and forest preserves, the boulevards and
highways connecting country towns with each other and with the city,
and the extension of a driveway around the shore of Lake Michigan,
involve relations with counties outside of Cook, and even with states
beyond the borders of Illinois. It may safely be assumed, without
specific inquiry, that the laws of Wisconsin and Indiana, if not
already adequate to the performance of their share in the project, can
easily be made so by the people of those states.
In Illinois the existing laws are in the main sufficient for the
needs of local communities which desire, by the exercise of their
present taxing powers or the organization of park districts, to bear
their part in a general scheme of improvement. The Act of June 19,
1893,[35] provides for the incorporation of park districts to connect
two or more cities or villages by means of boulevards or parks. A more
comprehensive measure is the Act of June 24, 1895,[36] under which
several park districts in Cook County, such as those at Winnetka,
Kenilworth, Wilmette and Rogers Park, have been organized by vote of
the people of those communities. A district formed under this act may
acquire land for parks or boulevards by purchase or condemnation, and
the board of park commissioners may accept from any municipality in
the district the control of any park or boulevard therein. Bonds may
be issued up to three per cent of the assessed valuation of property
in the district, and, in addition to taxes for the payment thereof,
a general tax of four mills on the dollar may be collected. Special
assessments for local improvements may be levied through the township
authorities. Districts bordering upon navigable bodies of water are
empowered to reclaim submerged lands, and the title of the state is
granted for that purpose to the park district to which such submerged
land is adjacent. The park authorities could construct islands or
driveways beyond the present water line. They would be required to
recompense the owners of the shore for any loss or diminution of their
riparian rights; but the benefits to the shore lands would doubtless in
many, if not most, instances more than offset the cost of the property
and property rights that would be taken or damaged for the improvement.
Among local agencies which might co-operate in suburban development
may be mentioned the townships. These have long exercised jurisdiction
over country roads, and they were authorized by two Acts of March 2,
1907,[37] to secure small parks by purchase or condemnation and upon
vote of the people to issue bonds and levy taxes for that purpose. No
park so established can be more than ten acres in extent.
Such limited local authorities may prove serviceable auxiliaries to the
main plan, but their powers are inadequate to the execution of the more
general features of metropolitan development; nor would it be just to
impose on local tax-payers the entire burden of such improvements as
the acquisition of extensive areas of park or woodland chiefly for the
resort and recreation of the people of the city. These enterprises
require the co-operation of a central body of more extensive powers and
larger resources.
In looking for instrumentalities through which such plans might be
executed, the park legislation of Massachusetts claims first attention.
The Metropolitan Park Commission, under whose auspices the city and
suburban park system of Boston has been developed, was created by an
act of the legislature of Massachusetts, approved June 3, 1893.[38]
It consists of five members, appointed by the governor, and exercises
jurisdiction over Boston and various other cities and towns which
constitute the Metropolitan Parks District. The board has power to
acquire and maintain open spaces, taking in fee or otherwise any land
necessary for that purpose, and acting so far as may be in consultation
with local boards. Any open space in a city or town may be turned
over to the board by the local authorities. Subsequent acts empower
the commission to construct roadways and boulevards, to purchase
or condemn land for that purpose, and to assess property specially
benefited thereby. The commissioners are authorized to abandon land
which they have acquired, thereby revesting title in the original
owner and reducing the damages which he might otherwise justly claim.
Authority is also given to sell, at public or private sale, any lands
or rights acquired and paid for. Property taken by the commission vests
in the Commonwealth of Massachusetts, and is to be paid for by state
bonds extending over a term of not more than forty years. Taxes to
meet the bonds are, however, apportioned among the cities and towns
within the district, and a reapportionment is to be made once in
five years. By an Act of March 17, 1903, the commission and the park
officers in any city or town were empowered to make reasonable rules
and regulations respecting the display of signs or advertisements
visible from public parks and parkways; but the Supreme Court, in the
case of _Commonwealth_ v. _Boston Advertising Co._, 188 Mass. 348,
held that this statute did not and could not confer upon the public
authorities any power to prohibit the owners of land from leasing it
for advertising purposes, unless just compensation were provided.
The Metropolitan Park Commission is a creature of the state—not of
the particular communities directly affected—and over its fortunes
the legislature has maintained a constant fostering care, extending
and defining its jurisdiction by successive acts, and granting fresh
financial powers as occasion arose. Local home rule is a political
principle not so firmly established there as in Illinois. Here it would
not be feasible to create a similar body by legislative fiat without
the concurring vote of the people of the district over which its
jurisdiction extended. Legislation designed for similar ends is more
likely, in this state, to take the general form of enlargement of the
powers and functions of the city and the county; or, especially if more
than one county is involved, of the creation of a special commission
endowed with extraordinary powers and similar in many of its features
to the forest-preserve districts contemplated by the Act approved May
18, 1905.[39]
This measure, which is entitled “An Act to provide for the creation
of forest-preserve districts,” authorizes the incorporation as a
forest-preserve district of any area of contiguous territory containing
one or more cities, towns, or villages within the same or adjoining
counties. Such a district can only be organized by the affirmative vote
of the inhabitants; and if it embraces parts of two counties, there
must be a favorable vote in each. The affairs of the district are to be
managed by a president and six commissioners, appointed by the governor
and drawn from different political parties. The president alone
receives a salary. The board is authorized to accept control of streets
in any city, town, or village on request of the local authorities, and
to designate existing streets and roads as pleasure driveways, and lay
out and establish others for that purpose; but none of these is to be
within any public park district. Power is given to acquire, by gift,
purchase, or condemnation, any land not already in a park district for
driveways and forest preserves. Bonds may be issued to the amount of
one per cent of the assessed value of all property in the district, and
this amount may be increased by a vote of the people to three per cent.
Authority is given to levy taxes for the payment of bonds and interest
thereon, and also to levy for general purposes an additional tax not
exceeding one mill on the dollar.
An attempt was made under this act to organize as a forest-preserve
district all of Cook County, except a few towns in the extreme north
and south ends thereof. It received a majority of the votes cast on
the proposition, but not a majority of those cast at the regular
election held on the same day. This has left some doubt as to the legal
effect of the vote. The result was largely due to indifference and to
the creation of a new taxing body with what were regarded by many as
unnecessarily extensive powers. A committee of the legislature was
appointed to report a revised act more consonant with the wishes of
the people. Among the changes which have been suggested are that each
district shall be confined to a single county; that the members of the
commission shall be appointed by the president of the county board; and
that taxes for the purposes contemplated by the act shall not be levied
by the district authorities themselves but by the board of county
commissioners. The proposed forest-preserve districts are essentially
park districts, though called by a different name; and the main objects
of this act might be accomplished by creating a forest-preserve
commission as a department of the county government, under appropriate
legislation—a method certainly less open to attack from a legal point
of view than the one embodied in the Forest-Preserve Act of 1905.[40]
Counties in Illinois have under existing law no general powers which
would enable them to take a prominent part in plans for the development
of the metropolitan district of Chicago; but it would be competent
for the legislature to invest them with more extensive functions.
There is in the constitution no limit upon the amount of county taxes
which may be voted by the people; and county bonds, when authorized by
popular vote, may be issued for any authorized county purpose up to the
constitutional limit of five per cent of the assessed value of taxable
property in the county.
In an inventory of the agencies which might be capable of sharing in
the creation of outer parks and boulevards, mention should not be
omitted of a Greater City of Chicago, which might be invested by the
legislature with power to purchase or condemn land far beyond its own
corporate limits in order to establish a system of parks and boulevards
commensurate with the needs of its inhabitants.[41] Some doubt has
been suggested as to the constitutionality of such a grant of power
if attempted under the so-called Chicago charter amendment to the
state constitution,[42] which authorizes “a special charter of local
municipal government for the territory now or hereafter embraced within
the limits of the city of Chicago.” The effective policing by the city
of parks and boulevards outside the city limits would present practical
difficulties, and the plan would impose upon the city the entire cost
of improvements in the advantages of which the suburban districts in
which these improvements were located would share. If all of the people
and property benefited are to bear their proportionate share of the
expense, the proposed system of outer parks and boulevards should be
acquired and controlled by the county or by a new municipal body.
CITY PARKS, SQUARES, BOULEVARDS, AND AVENUES
The existing municipal corporations that might be authorized to bear
a part in realizing the Plan within the city limits are the city
of Chicago, the county of Cook, and the several park boards. Any
participation by the Sanitary District, as by bridging its canals or
improving the appearance of their banks, would be incidental.
City councils are empowered by Article V of the City and Village Act of
1872 to lay out, establish, open, widen, pave, and otherwise improve
streets, alleys, avenues, parks, and public grounds, and to plant trees
upon and regulate the use of the same.[43] In the case of _Thompson_
v. _Highland Park_, 187 Ill. 265, the court sustained the power of
the city to include parkways and grass plots in the improvement of a
street to be paid for by special assessment. The special Act of May
18, 1905,[44] relating to the city of Chicago only, confers upon the
council power to acquire, by purchase or otherwise, municipal parks
and playgrounds, and declares that the city may exercise the right of
eminent domain for the acquirement of property useful, advantageous,
or desirable for municipal purposes; and that the procedure in such
cases shall be, as nearly as may be, like that provided for in the
Act of June 14, 1897, concerning local improvements as amended or to
be amended. Land taken for a park is “property useful, advantageous,
or desirable for municipal purposes,” and a public park is a “local
improvement,” the cost of which may be assessed upon contiguous
property to the extent of the special benefits when the legislature
authorizes that course to be pursued.[45] The “Act concerning local
improvements”[46] directs the city council to provide, in any ordinance
for a local improvement, whether it shall be made by special assessment
or special taxation, or by general taxation, or otherwise; and, in
sections 13 to 33, inclusive, defines the procedure for ascertaining
the compensation to be paid for private property taken or damaged,
and for assessing the cost on other property to the extent to which
it is specially benefited. The city, therefore, already possesses
power to acquire public parks within the city limits and to assess
the cost, or the greater part thereof, against property in the
neighborhood of the improvement. Under the present law all ordinances
for local improvements in the city, to be paid for wholly or in part
by special assessment or special taxation, must originate with the
board of local improvements; but if the park boards were merged in the
city government, it might be feasible to grant to an administrative
department of parks the initiative with respect to local improvements
within their special jurisdiction.[47] The city authorities have now
ample power, to the extent of their financial resources, to improve
and widen existing streets and to open new streets, parks and public
grounds. The city council has adequate discretion to determine how wide
any street shall be, and whether it shall be devoted entirely to travel
or given up partly to lawns, trees, and parkways.
It is highly important that the city should be able effectively to
control the traffic on streets and boulevards, and especially to keep
designated residence streets free from heavy teaming or particular
kinds of traffic (such as through teaming, not going to or from
property fronting on the particular street), without formally turning
such streets over to park authorities as boulevards. This power may be
given by the 96th paragraph of Section 1 of Article V of the statute in
relation to cities, villages, and towns,[48] which authorizes the city
council to “direct, license, and control all wagons and other vehicles
conveying loads within the city, or any particular class of such wagons
or other vehicles.” If more specific authority is required, it should
be obtained from the legislature. The streets are held by the city in
trust for the general public and cannot be diverted from that purpose
by the city without special authority.[49] The legislature, however, as
representative of the public, has control over them, and may limit the
public right to make free use of streets; as it actually has done in
the statute authorizing the wheel tax.[50] It may authorize municipal
authorities to designate certain streets as pleasure driveways, to the
exclusion of heavy traffic,[51] or to turn over any of its streets
to park boards for boulevard and driveway purposes;[52] but the city
cannot, without legislative authority, divest itself of the control of
a street nor restrict the public in the reasonable use and enjoyment
thereof.[53] General authority has been conferred upon city councils to
regulate the use of streets, but this provision of the statute cannot
safely be relied upon as an unqualified delegation of power to set
aside some streets for exclusive use as pleasure driveways, since the
Act of March 27, 1889,[54] expressly empowers the municipal authorities
of a city or village to select for that purpose _not more than two
streets_ within the corporate limits. This doubt the legislature should
be asked to set at rest.
The narrow scope of the powers of Cook County has already been
commented upon. While counties could not, under the present
constitution, be authorized to pay for improvements by special
assessment, the general assembly might empower the county board to
purchase or condemn land within or without the city limits for parks or
other public uses, the cost to be paid from the proceeds of any bond
issues which the people might see fit to vote within the five per cent
limit of indebtedness. A park commission or forest-preserve commission,
established as an administrative department of the county government,
would be an appropriate agency for carrying out these objects.
The only park authorities now exercising any considerable jurisdiction
within the city limits are the South Park Commissioners, the West
Chicago Park Commissioners and the Commissioners of Lincoln Park, all
of which were incorporated by the legislature in the year 1869 for the
purpose of acquiring certain specific parks and boulevards. They have
received additional powers from time to time. The West Chicago Park
Commissioners, within whose jurisdiction the proposed Civic Center
would lie, were authorized by the Act of 1869 to purchase or condemn
the land described therein, and to levy special assessments for that
purpose. The Act of April 9, 1879,[55] as amended, gives every board
of park commissioners power to connect its parks or boulevards with
any part of a city, town, or village by taking any appropriate street
with the consent of the corporate authorities and of the owners of a
majority of the frontage. In 1885 park boards were authorized to accept
from municipal authorities any parks under their control.[56] The Act
of May 10, 1901,[57] empowers every park board to acquire, by purchase
or condemnation, as many small parks, not exceeding ten acres each, as
it desires and can pay for.
By the Act of March 4, 1907,[58] even more extensive powers are
conferred upon the commissioners of every public park district
appointed or selected pursuant to any act which has been or may be
submitted to the legal voters of such park district and by them
adopted. Full power is given to purchase or condemn any land for the
establishment of new parks or the extension of old parks, and, by
vote of the people, to issue bonds to any desired amount within the
constitutional limit. This act materially increases the powers of the
boards to which it applies. The West Park board is within its terms;
and may, upon favorable vote of the people of the district, bond itself
up to the constitutional limit; and it can probably also levy special
assessments under authority of the Act of June 24, 1895,[59] to pay for
property condemned for park purposes.
Land for the proposed Civic Center might be acquired through any one
of several agencies. The city of Chicago, if financially able, could
purchase the necessary area, or condemn it and assess back part of
the expense on real estate in the vicinity. Any portion of the cost
not raised by special assessment would have to be defrayed from the
proceeds of bonds, which, under the constitution, must be redeemable
within twenty years, and must not increase the indebtedness of the
city beyond five per cent of the assessed value of property therein.
Additional borrowing powers may be conferred upon the city through
consolidation of various local authorities with the city under the
so-called charter amendment to the state constitution, or through a
change in the statutory method of fixing the assessed valuation of
property. Appropriate legislation should be enacted at once in order to
make land thus acquired available not only for city buildings or park
purposes, but for the location of the buildings of other public bodies,
upon financial and other terms to be fixed by negotiation with the
city.[60]
The county of Cook, though now lacking the necessary powers, might be
authorized by the legislature to acquire, with the proceeds of a bond
issue, the requisite area for the Civic Center, and to make appropriate
arrangements for the location therein of federal and city buildings and
other public edifices.
The West Park board might well be asked to treat the Civic Center as a
legitimate object for the exercise of its functions, and with that end
in view it should be invested by the legislature with powers adequate
to the immediate acquisition of the land embraced in the proposed
Civic Center, and should be authorized to arrange appropriate terms
for the future occupation of part of the area by the buildings of
other governmental and public bodies; among which terms might be the
reimbursement of part of the original cost.
Among the agencies which might be created to carry out this and
other features of the Plan should, perhaps, be mentioned a municipal
corporation organized along the lines indicated by the forest-preserve
legislation already alluded to. The Act of 1905[61] permitted cities
and villages to be included in a forest-preserve district, and the city
of Chicago was included within the boundaries of the proposed district
the creation of which was submitted to popular vote. Section 6 of that
act, providing for the designation of streets as pleasure driveways,
specified that none of them should fall within any park district, and
that no preserves should be within the limits of a park district.
The legislature may have power to eliminate such restrictions, and
to sanction the incorporation of a metropolitan board capable of
exercising all the powers of a park commission within and without the
city limits.
With reference to the proposed boulevard link on Michigan Avenue,
connecting the north and south sides, it is to be borne in mind that
the city under its general powers can enlarge Michigan Avenue to any
desired width and can alter the grade of the whole or any portion of
the street. There were, however, passed by the legislature May 25,
1907, four acts which were designed to facilitate the construction of
this boulevard link. It was in contemplation at that time that the
South Park and Lincoln Park boards would do part of the work and defray
part of the expense, and that the city would meet the balance of the
cost by annual appropriations extending over a series of years.
The first of these four acts[62] was designed to enable the South
Park board to contribute such part of the expense as to it might seem
best. This bill provides that the corporate authorities of any public
park district having control of any park in a city wherein other park
districts and parks are situated, but not connected therewith by any
boulevard or driveway or other park thoroughfare, may from time to time
in their discretion issue and sell additional bonds, not exceeding the
five per cent limitation, in order to defray the expense of connecting
any park under their control with any other public park or parks
by means of a boulevard and driveway in the city, and altering and
improving any connection or connections between such parks. Such bonds
must, however, be authorized by the voters of the park district at an
election.
By the second act,[63] the Lincoln Park board is authorized to issue,
upon a favorable vote of the electors of the district, bonds not
exceeding $1,000,000 for the purpose of constructing surface and
elevated boulevards and the approaches thereto over or along streets
and alleys, when authorized to do so by any city having control thereof.
The other two acts referred to were passed in order to dispel any doubt
about the power of municipalities to erect an elevated structure in a
public street. One[64] empowers any city to grant, by ordinance, to any
board having jurisdiction over parks and boulevards the right to take
and improve, by means of surface or elevated ways, a street not more
than one mile in length, with all convenient or necessary approaches,
inclines, and superstructures; while the other[65] confers power upon
any city to construct and maintain an elevated way in any street,
with all necessary approaches, inclines, and superstructures, and to
authorize any commission or board having jurisdiction of a public park
to take over, maintain, and control, upon terms fixed by ordinance, any
street and any incline, approach, or superstructure therein.
An alternative method of constructing a surface or elevated boulevard
link would be found in a proceeding by the city under the Local
Improvement Act. The city has ample power to condemn property for
widening the street and to assess the land damages against all property
specially benefited thereby. Having thus added contiguous property to
the street as a part thereof, the city could, under the enabling act
already alluded to, if not under its general powers, construct the
proposed improvement. It must be borne in mind, however, that even if
the method of special assessment were resorted to in order to defray
the cost, a substantial percentage of that cost would, no doubt, be
designated by the court to be paid by the city as public benefits.
LAKE SHORE DEVELOPMENT
The treatment of the shore of Lake Michigan within the city limits
involves comparatively little difficulty from a legal point of view.
Ample legislation has been provided under which the Lincoln Park and
South Park boards can extend their driveways and parks over the bed
of Lake Michigan, subject to the consent of the Secretary of War. An
Act of May 14, 1903,[66] expressly confers upon every board of park
commissioners having control of any park, boulevard, or driveway
bordering upon any public waters in the state the power to extend the
same over the bed of such waters, and to connect two parks under their
control by a boulevard or driveway over the bed of the water. Private
riparian rights or titles may for such purpose be acquired by contract
with or deeds from the owners, and may be paid for out of the general
revenues of the park board. By Section 4, the title of the state to
the submerged lands between the shore and the boulevard or parkway—in
other words, the bed of the intervening lagoon—is granted to the board
of park commissioners. Several other statutes on this subject were
enacted on the same date. One authorizes the South Park Commissioners
to extend any park under their control out into the lake over the
adjacent submerged lands;[67] another conveys to the South Park
Commissioners Grant Park from Randolph Street to Park Row, together
with the submerged lands lying between those streets extended east to
the harbor line established by the Secretary of War;[68] another grants
to the South Park Commissioners title to all submerged and artificial
lands between the south boundary of Jackson Park and the south line of
Seventy-ninth Street extended one thousand feet into Lake Michigan,
and to the land included within a triangle formed by the shore of Lake
Michigan, the extension of Ninety-fifth Street and the extension of the
state boundary line.[69]
This legislation did not authorize the condemnation of riparian
rights, but only the acquisition of such rights by negotiation. To
facilitate settlement, an Act passed May 2, 1907,[70] empowered the
park commissioners, with the approval of the Circuit Court, to agree
with the riparian owners upon a boundary line between the public park
and the private shore lands, and to convey to the riparian owners
all submerged land lying inside of the boundary line thus fixed by
agreement; in other words, the park board, having received from the
state a grant of its title to the bed of the lake, is authorized to
sell and convey to the shore owners so much thereof as may be necessary
to induce them to release their riparian rights. If any shore land is
owned by persons who are incompetent to contract or who are unknown,
the power is given to condemn their riparian rights, pursuant to the
provisions of the statute of eminent domain. That power should not be
limited to the lands of unknown or legally incompetent owners. Under
this legislation, the park board has power to build a boulevard far out
into the lake and to settle with the riparian owners by conveying to
them as wide a strip of the submerged lands as may be deemed expedient;
and the shore owners will then have the right to fill in such
submerged strip, thus adding extensive areas of valuable shore land
to their present holdings. The constitutionality of this legislation
is virtually settled by the case of _People_ v. _Kirk_, 162 Ill. 138,
sustaining a similar arrangement between the Lincoln Park board and the
proprietors of the shore south of Oak Street. The Lincoln Park board
has been given power to condemn shore lands and riparian rights under
an amendment of Section 2 of an act passed June 15, 1895, and court
proceedings are authorized for the establishment of the boundary line
between the park lands and the lands of private owners.[71]
The right of the state to authorize structures which might interfere
with navigation is subordinate to the paramount control of the War
Department of the United States; and the improvements contemplated
by the legislation last described cannot be carried out without the
consent of the Secretary of War. Proceedings looking to a grant of
such consent were temporarily stayed by the remonstrance of Mayor
Busse, and the appointment by him, under authority of the city council,
of the Chicago Harbor Commission, which has made a comprehensive
study and detailed report on the harbors of the city, together with
recommendations as to harbor, railway terminal, and park plans along
that part of the shore of Lake Michigan between Twelfth Street and
Jackson Park. The report is entirely favorable to the essential
features of the plan for park and boulevard development on the Lake
Front, but with appropriate reservations for future harbor development.
It strongly favors the accomplishment of such plans at the earliest
possible moment, stating that “there is no real conflict between
the harbor and the park interests of Chicago and no artificial or
unnecessary discord should be permitted to retard the complete and
prompt execution of the plans necessary for the development of both
sides of the city’s life.” It recommends that “a detailed plan carrying
out this idea should be worked out jointly by the experts of the park
authorities and an expert engineer appointed by the city, subject to
the approval of the city council and the South Park Commissioners,” and
urges immediate action by these authorities. As soon as such a plan can
be worked out and the consent of the War Department be secured, there
is nothing but the question of ways and means to delay the execution of
this plan. The legislature has already authorized the South Park board,
upon obtaining authority from the people at an election, to issue bonds
up to the constitutional limit for the construction of the Lake Front
Park.[72]
TRANSPORTATION PROBLEMS
The readjustment of freight and passenger traffic and the relocation
of railroad terminals is a subject which requires little comment from
a legal point of view. When railway companies are brought to the point
of hearty co-operation with the Chicago Plan, the powers which they
already enjoy will be found adequate to the execution of their part.
The state has placed at their service all necessary powers of eminent
domain, and those portions of streets and alleys required for railway
terminals may be vacated by the city. Although the action of the city
council in vacating streets to make room for a railway station has been
attacked, it has been sustained by the lower courts.
It may be that the legislature should be asked to confer upon the
city additional powers that would enable it to acquire property for
railway terminals and appropriate connections to be used by the
various transportation lines on just terms. A city cannot condemn
land for the purpose of turning it over to a railway corporation,
but there can be little doubt of the power of the legislature to
authorize a city to condemn land in order to create a central clearing
place for traffic. Chapter 247 of the Acts of the legislature of
Wisconsin for the year 1907 is an example of a law designed for that
end. This statute authorizes cities of the first class to acquire,
establish, own and operate railway terminals, and to condemn land
for that purpose. Having established such a terminal, the city may
permit any railroad corporation to use it upon agreed terms, or, if
the parties cannot agree, then upon terms to be fixed by the state
railroad commission. To meet the first cost, the city is authorized
to issue “railway terminal certificates,” payable only out of the
revenues derived from the terminals for the acquisition of which they
are issued. These certificates may be secured by trust deed, and there
are provisions for foreclosure similar in many respects to those
contained in the so-called “Mueller Law” enacted by the legislature of
Illinois, authorizing municipal ownership of street railways. Under
the decision of the Supreme Court of Illinois,[73] such certificates
would constitute “indebtedness” of the city, and the amount which
could be issued at any time would be controlled by the constitutional
limitation of municipal indebtedness. That municipal certificates or
bonds secured by revenue-producing utilities and not made a charge upon
the other property or general credit of the city should be exempted
from the general constitutional debt limit is advocated by men of
widely different opinions upon the public-utility question,[74] and is
provided in various state constitutions.[75] Constitutional amendments
to this effect are being proposed in New York and elsewhere.
CONTROL OF LANDS ADJACENT TO PUBLIC IMPROVEMENTS
In order to secure the full benefit of a park, boulevard, avenue
or other place of public recreation or resort, some control of the
immediate surroundings is indispensable. The municipal authorities
which establish parks, boulevards, and other public places need some
power to regulate the use of premises within immediate view of the
public grounds, so as to prevent offensive advertising, restrict
the kinds of business, if any, to be conducted thereon, and make
appropriate regulation of the height, manner of construction, and
location of the surrounding buildings. To that end, resort must be had
either to the police power or to the power of eminent domain.
The police power of the state is not available for merely æsthetic
purposes, and is quite inadequate to the solution of this special
problem. Owners of land, under existing constitutional limitations,
can with impunity lease to advertising companies the right to erect
safely constructed billboards and paint the sides and roofs of barns
with any advertisements not injurious to morals or contrary to public
decency; nor can vulgarities which merely offend the sight and shock
temperamental susceptibilities be construed as breaches of decency. “It
is believed,” says a writer in the Harvard Law Review,[76] “that both
on theoretical and practical grounds the law must be taken as settled
that, although public æsthetic ends may be effectuated by statute or
ordinance through the exercise of eminent domain, the same object may
not be accomplished by legislation under the police power without
compensation.”
In the case of _Chicago_ v. _Gunning System_, 214 Ill. 628, the
Supreme Court of Illinois declared that the legislature, by conferring
authority upon the city council to abate nuisances and enforce police
ordinances, had given that body ample power to regulate, within
reasonable limits, the construction of billboards upon private
property; but the court nevertheless condemned a particular ordinance
for the reason, among others, that the purpose of certain sections
seemed “to be mainly sentimental and to prevent sights which may be
offensive to the æsthetic sensibilities of certain individuals residing
in or passing through the vicinity of the billboards.”
A broader control may, however, be exerted under the power of eminent
domain. It is possibly within the capacity of the legislature to
authorize park boards or other governmental bodies to acquire by
condemnation proceedings, upon payment of compensation, the right,
even in country districts, to restrict the use of all land within view
of a driveway or park; but the exercise of that power with respect to
property which does not actually front on the park or driveway scarcely
falls within the domain of practical consideration in connection with
the present Plan.
Nearer the center of urban population, where the billboard nuisance is
even more aggravated, the city is now the only effective repository of
the police power. The county is not at present a factor in the problem;
and park boards, while they have adequate police jurisdiction in their
own territory, have none outside. It is competent for the city council,
in the exercise of the police power, to regulate the construction of
advertising signs for the protection of public decency or public safety
by reasonable ordinances, but not to prohibit them altogether, nor
restrict their size, construction, or location more than is reasonably
necessary to keep them within the limit of safety; nor could land
abutting upon parks and boulevards be subjected to substantially
different regulations in this respect from those imposed upon property
fronting on business streets. In the case of _Chicago_ v. _Gunning
System_, already adverted to, a provision forbidding the erection of
billboards on residence streets without the consent of residents in the
block was condemned by the court as “an arbitrary restriction on the
part of the city, depriving an individual property owner of the use of
his property as he may choose, without any showing that such use would
be injurious to others in the same vicinity.” The city council cannot
condemn as a nuisance what the law adjudges not to be a nuisance. In
order, therefore, to control offensive advertising by such regulations
as the city ought to have power to impose, resort must be had to some
other function of government than the police power.
The construction of buildings is also subject to some regulation under
the police power. The city is vested with authority to prescribe the
strength and manner of constructing buildings, to define fire limits,
and to pass and enforce all necessary police ordinances; and the
power conferred upon it to pass “all necessary police ordinances” is
construed as delegating to the city all the appropriate police power of
the state.[77] No question is made but that the city council has power
to regulate the height of buildings with a view to health and public
safety; but it may be doubted whether the police power would justify
the municipal authorities in imposing more rigorous restrictions upon
the character of buildings to be constructed along boulevards and
around parks than in other parts of the city. The Supreme Judicial
Court of Massachusetts has sustained the right of the legislature to
delegate to a city the power to regulate the height of buildings, to
prescribe different regulations for different districts, and to invest
a commission with the right to determine the boundaries between such
districts,[78] and has expressed the opinion that certain special
regulations of the height of buildings around a public square might
be imposed under the police power without making compensation.[79]
It is doubtful whether local distinctions of this character would be
sustained in Chicago under existing legislation, except in so far as
they might be justified by the power to establish fire limits. The
legislature might delegate to city councils the power to district the
city and prescribe different building limits in different districts;
but any distinctions of this sort would have to rest upon real
differences, and it remains doubtful whether the police power could be
invoked to justify making a special district of the area surrounding
a public square or avenue. The council could not be invested with
authority to establish building lines without awarding compensation to
the owner;[80] nor could the legislature confer the right to regulate
arbitrarily the character of the business to be conducted in premises
abutting on a boulevard.[81] A business which is an actual nuisance
may be prohibited altogether; and the legal machinery exists for
excluding saloons and some other kinds of business from limited areas.
Such exercise of the police power must, however, bear some reasonable
relation to the public health, safety, or morals, and could not, under
existing constitutional restraints, be extended to business in general.
Such being the limits of the police power, it is evident that, in
order to secure any effective control of the environs of a public
place, resort must be had to some authority of wider scope, and the
only available power is that of eminent domain, under which the state
and its agencies have the right to take any private property for a
public use, upon providing just compensation. The areas adjacent to a
public place could probably be controlled under this power, either by
condemning them outright as a part of the improvement, or by condemning
merely a qualified right to regulate and control them. If they were
taken outright, the question would arise whether they could be resold
subject to the necessary restrictions upon their future use; thus
reducing the cost of the improvement to the extent of the increase in
the value of this land caused by the improvement.
The right to appropriate private property for public use is an
attribute of sovereignty, existing in the state independently of
written constitutions, and vested in the general assembly by those
provisions of the constitution which confer upon that body the
legislative power of the state. In Illinois, as in all of the states,
the power of the legislature to take private property for the use of
the community is subject to two constitutional limitations: one, that
just compensation must be provided for all property so taken; the
other, that private property cannot be taken, even upon payment of its
full value, for any except a public use. These two restrictions are
also imposed by the fourteenth amendment of the federal constitution,
which declares that no state shall deprive any person of property
without due process of law. Subject to these qualifications, the state
has unlimited power to appropriate through its legislature any property
within its borders which has become the subject of private ownership;
and this power of eminent domain the legislature may delegate, with or
without restrictions, to any subordinate agency. The expediency of the
exercise of that power in any given case is a subject over which the
courts have no control, unless they can say that the proposed use is
not public. On these general principles all the authorities are agreed.
The United States Supreme Court has frequently stated the principles of
the law of eminent domain. In _Boom Company_ v. _Patterson_, 98 U. S.
403, Mr. Justice Field, in delivering the opinion of the court, said:
“The right of eminent domain, that is, the right to take private
property for public uses, appertains to every independent government.
It requires no constitutional recognition: it is an attribute of
sovereignty. The clause found in the constitutions of the several
states providing for just compensation for property taken is a
mere limitation upon the exercise of the right. When the use is
public, the necessity or expediency of appropriating any particular
property is not a subject of judicial cognizance. The property
may be appropriated by an act of the legislature, or the power of
appropriating it may be delegated to private corporations, to be
exercised by them in the execution of works in which the public is
interested.”
Parks, boulevards, and places of recreation are now universally
recognized as legitimate objects of public concern, for which the power
of eminent domain may appropriately be exercised; and it seems clear
that if private property can be taken to create such utilities, it may
also be taken for the purpose of realizing the full benefit of these
works by adequate control of the surroundings. The legislature might
at least authorize a city, park district, or other subordinate agency
to exercise the power of eminent domain by imposing upon property in
the neighborhood of a public place restrictions upon the location or
character of the buildings to be erected, or the kinds of business,
if any, to be conducted upon such adjacent land. It could not be
successfully argued that such a use was not public.
The conception of a public use must alter and expand with the
development of civilization, and especially with the growth of cities.
In sustaining an act of Congress providing for the condemnation of
land for a public park in the District of Columbia, and assessing part
of the cost upon the property specially benefited, the Supreme Court,
in the case of _Shoemaker_ v. _United States_, 147 U. S. 282, 297,
speaking through Mr. Justice Shiras, said:
“In the memory of men now living, a proposition to take private
property, without the consent of its owner, for a public park, and to
assess a proportionate part of the cost upon real estate benefited
thereby, would have been regarded as a novel exercise of legislative
power. It is true that, in the case of many of the older cities and
towns, there were common or public grounds, but the purpose of these
was not to provide places for exercise and recreation, but places on
which the owners of domestic animals might pasture them in common,
and they were generally laid out as part of the original plan of the
town or city. It is said, in Johnson’s Cyclopedia, that the Central
Park of New York was the first place deliberately provided for the
inhabitants of any city or town in the United States for exclusive
use as a pleasure ground for rest and exercise in the open air.
However that may be, there is now scarcely a city of any considerable
size in the entire country that does not have, or has not projected,
such parks. The validity of the legislative acts erecting such parks,
and providing for their cost, has been uniformly upheld.”
Again, in the case of _Attorney General_ v. _Williams_, 174 Mass. 476,
the Supreme Judicial Court of Massachusetts used the following language:
“The uses which should be deemed public in reference to the right of
the legislature to compel an individual to part with his property
for a compensation, and to authorize or direct taxation to pay for
it, are being enlarged and extended with the progress of the people
in education and refinement. Many things which a century ago were
luxuries, or were altogether unknown, have now become necessaries.
It is only within a few years that lands have been taken in this
country for public parks. Now the right to take land for this purpose
is generally recognized and frequently exercised.... The grounds on
which public parks are desired are various. They are to be enjoyed
by the people who use them. They are expected to minister not only
to the grosser senses, but also to the love of the beautiful in
nature, in the varied forms which the changing seasons bring. Their
value is enhanced by such touches of art as help to produce pleasing
and satisfactory effects on the emotional and spiritual side of our
nature. Their influence should be uplifting, and, in the highest
sense, educational. If wisely planned and properly cared for, they
promote the mental as well as the physical health of the people. For
this reason it has always been deemed proper to expend money in the
care and adornment of them, to make them beautiful and enjoyable.
Their æsthetic effect never has been thought unworthy of careful
consideration by those best qualified to appreciate it. It hardly
would be contended that the same reasons which justify the taking of
land for a public park do not also justify the expenditure of money
to make the park attractive and educational to those whose tastes are
being formed, and whose love of beauty is being cultivated.”
When once it is conceded that a use is public, the courts have no
control over the character of the estate or easement to be taken for
the purpose. The constitution of Illinois provides, indeed, that when
a railroad company condemns a right-of-way the fee shall remain in the
former owner; but, subject to that restriction as to these particular
corporations, the legislature has unlimited power to specify the
nature, extent, and duration of the estate that shall be taken for any
public use. Having the right to authorize the taking of an absolute
title, it could direct the appropriation of any lesser interest, and
could confer upon public bodies power to condemn the right to restrict
the use and improvement of property contiguous to public grounds.
It does not appear, however, that the present statutes of Illinois
do confer upon municipalities any express power to condemn such
easements over lands contiguous to a street, boulevard, park or other
public place. In the legislation under which the West Chicago Park
Commissioners were incorporated and organized, there were sections
expressly directing the park commissioners to impose building lines
upon property adjacent to the parks and boulevards authorized thereby,
and in the condemnation proceedings compensation was to be included for
this burden. The West Park board, however, never undertook to avail
itself of these extensive powers, which were limited to the acquisition
of the original parks and boulevards authorized by the act. It might
be argued that the city, under its present authority to establish and
enlarge parks, boulevards, and streets, could condemn such easements
directly, or that it could condemn a wide strip for a new street or
land contiguous to an old street, and, by the familiar device of a
stipulation entered of record in the condemnation suit, limit the
appropriation to a restricted control of the use of the property.
The latter method, if lawful, would be clumsy and inadequate, and
additional legislation would be desirable to enable public authorities
effectively to acquire, under the power of eminent domain, a qualified
jurisdiction or control over property of which the exclusive use is not
taken.
Even such a law, however, would fall short of the public need. To
give the city or other agency a free hand in controlling the environs
of a public place, the authorities should be invested with power to
acquire the actual title, and then to dispose of it subject to such
restrictions as might be deemed expedient. This course offers the
double advantage of giving the public agency absolute control of the
future use and improvement of the surrounding property, and of enabling
it, if the price of acquisition is not too great, to recoup in some
measure the cost of the improvement by selling the residual title. A
lot abutting on a park or boulevard might be worth much more after it
had become part of a larger area subject to uniform building lines and
restrictions than it was in its unencumbered condition; and the public
authorities, by treating the whole improvement and its environment as
a unit, might reap a pecuniary advantage which they could not have
conferred upon individual owners even if they had desired to do so.
An examination of the power of municipalities to take land in excess
of physical requirements involves two questions: first, whether extra
land can be taken merely for the purpose of selling it and defraying
the cost of the improvement; and, second, whether, even if that right
is denied, such land can be condemned and resold for the purpose of
imposing upon it building or sanitary restrictions and limitations of
use.
As already stated, it may be accepted as elementary that neither the
state, through its legislative department, nor any subordinate agency
of the state can take a man’s property against his will, under the
power of eminent domain, merely for the purpose of giving it or selling
it to another man. Such a taking would not be for public use and would
violate the state and federal constitutions. It by no means follows,
however, that a state agency, exercising the power of eminent domain,
is always forbidden to derive profit from the sale of property not
found to be actually needed. The activities of the Sanitary District
of Chicago suffice to show how an area larger than is demanded by the
ultimate needs of the public work may be acquired and converted into a
source of revenue. A municipal corporation enjoys a large discretion
in determining for itself how much land it needs for its public works,
and courts will not ordinarily curb its freedom of action unless the
exercise of the power of eminent domain is clearly excessive. If the
city council saw fit to condemn a strip of land five hundred feet
wide for an avenue or boulevard, the courts would have no right to
question its decision unless, in the particular instance, there was
some “manifest injustice, oppression or gross abuse of power”;[82]
nevertheless, if it did clearly appear as a fact that the ultimate
object was to lay out an avenue only one hundred feet in width, the
question would be squarely presented whether the margins on each
side could be taken outright in order to govern their future use and
development.
In an early New York case, a legislative attempt to authorize the
taking of more land than was actually needed was condemned by the court
in the following language:
“This power has been supposed to be convenient when the greater
part of a lot is taken, and only a small part left not required for
public use, and that small part of but little value in the hands
of the owner. In such case the corporation has been supposed best
qualified to take and dispose of such parcels, or gores, as they have
sometimes been called; and probably this assumption of power has been
acquiesced in by the proprietors. I know of no case where the power
has been questioned and where it has received the deliberate sanction
of this court. Suppose a case where only a few feet or even inches
are wanted from one end of a lot to widen a street, and a valuable
building stands upon the other end of such lot, would the power be
conceded to exist to take the whole lot, whether the owner consented
or not? Or suppose the commissioners had deemed it expedient and
proper in this case, in the language of the statute, to take the
whole of the churchyard, the act would have been equally within the
letter of the statute with their act in the present case; and yet
no one would suppose that the legislature ever intended to confer
such a power. The quantity of the residue of any lot cannot vary the
principle. The owner may be very unwilling to part with only a few
feet; and I hold it equally incompetent for the legislature thus to
dispose of private property, whether feet or acres are the subject of
this assumed power. I am clearly of opinion that the commissioners
have no right to take the strip of land in question against the
consent of the corporation of Trinity Church.”[83]
While there is a dearth of modern authority on this subject, it is
believed that the courts would still accept the reasoning of this
Albany Street case, and would sustain the position of an owner who
refused to surrender his property in order merely to diminish the
cost of a public improvement. Such enactments, however, though void
as to an unwilling property owner, are valid in so far as they confer
authority on the city to take and pay for the whole parcel with the
owner’s consent, and to spend the people’s money for that purpose.[84]
A plan for acquiring a large area by private purchase could not be
successfully carried out if one or two of the proprietors could refuse
to part with their property, and such a scheme must therefore be
confined within the limits of the power of eminent domain.
In order to justify the appropriation of a zone outside of the actual
lines of the public space, it must appear that the property is to be
made, in some sort, a part of the improvement; and that fact does
appear when the control of the debatable zone is sought in order
to save the environment of the public place from disfigurement or
objectionable use. That end suffices to justify the condemnation
of some interest in the zone; and it is well established by the
authorities that when the public good requires the appropriation of
some interest, the legislature is sole judge of the particular nature
of the interest that shall be taken, and may, without being answerable
to any court, declare that the interest to be taken shall be a fee
simple absolute. A railway company does not require the title, or even
the exclusive use, of its entire right-of-way; yet it is not doubted
that, in the absence of a constitutional restriction, the legislature
might authorize a railway company to take the entire title. In most
states, the fee of a street remains in the owner of the property over
which the street is laid out under the power of eminent domain; yet
there is no question but that the legislature has power to vest the fee
in the city. The Supreme Court of Minnesota, in the case of _Fairchild_
v. _St. Paul_, 46 Minn. 540, where the question was raised whether the
city acquired through condemnation proceedings the actual title to the
street or only an easement, stated the established principles of the
law in the following language:
“There is nothing better settled than that, the power of eminent
domain being an incident of sovereignty, the time, manner and
occasion of its exercise are wholly in the control and discretion
of the legislature, except as restrained by the constitution. It
rests in the wisdom of the legislature to determine when and in what
manner the public necessities require its exercise; and with the
reasonableness of the exercise of that discretion the courts will
not interfere. As the legislature is the sole judge of the public
necessity which requires or renders expedient the exercise of the
power of eminent domain, so it is the exclusive judge of the amount
of land, and of the estate in land, which the public end to be
subserved requires to be taken. * * *
“When the use is public, the necessity or expediency of appropriating
any particular property is not a subject of judicial cognizance.
Consequently, if in the legislative judgment it is expedient to do
so, it has the power expressly to authorize a municipal corporation
compulsorily to acquire the absolute fee simple to lands of private
persons condemned for street or any other public purpose. The
authorities are so numerous and uniform to this effect that an
extended citation of them is unnecessary. * * * It is often laid down
as the law that the taking of property must always be limited to the
necessity of the case, and, consequently, no more can be appropriated
in any instance than is needed for the particular use for which the
appropriation is made. But it will be found that this is almost
invariably said, not in discussing the extent of the power of the
legislature, but with reference to the construction of statutes
granting authority to exercise the right of eminent domain, and where
the authority to take a certain quantity of land or a particular
estate therein depended, not upon an express grant of power to do
so, but upon the existence of an alleged necessity, from which the
disputed power is to be implied.”
The city of Brooklyn acquired land for public parks under a statute
authorizing the acquisition of the title, and the court, in sustaining
the validity of a subsequent act of the legislature authorizing the
sale of portions of the land no longer needed, said:
“Doubtless, in most cases, when land is condemned for a special
purpose on the score of public utility, the sequestration is limited
to that particular use. But this is where the property is not taken,
but the use only. Then, the right of the public being limited to
the use, when the use ceases the right ceases. Where the property
is taken, the owner paid its true value, and the title vested in
the public, it owns the whole property, and not merely the use; and
though the particular use may be abandoned, the right to the property
remains.”[85]
Land acquired for canal purposes has often been held to have vested
absolutely in the state, so that upon abandonment of the canal the
premises could be devoted to a different use or sold to a private
purchaser.[86]
Some courts have intimated that land condemned for park purposes is
presumptively dedicated to that use forever; and, hence, that authority
to condemn for such a use implies authority to take the absolute
title. Moreover, if a statute provided that land acquired for a public
purpose could be sold when no longer needed, the implication would
seem to be unavoidable that the title acquired under the statute was
absolute. No general authority, however, has as yet been conferred upon
municipalities in this state to take under the power of eminent domain
a title that would survive the public use.
Under appropriate legislation, then, a city could take the absolute
fee to any property in which it required an interest for the public
use. It is equally well settled that the legislature can authorize the
sale of any such land when it is no longer needed for the purpose for
which it was acquired. The property, it is true, is held in trust for
the public, but that trust could be relinquished by authority of the
legislature, which represents the public, and the property could then
be sold; and the authority to sell such surplus when no longer needed
could be contained in the act authorizing the original condemnation. Of
such a statute it was said in _Matter of City of Rochester_ 137 N. Y.
243:
“It is claimed that this provision is in conflict with the provisions
of the constitution respecting the taking of private property for
public use, as it in fact authorizes the city to take it for a
purpose not public. We think the objection is without merit or
substance. Of course, the city could not take private property for
the purpose of selling it or dealing in it; but, having once acquired
it for a park, and it becoming, in the course of time, unnecessary or
useless for that purpose, by the growth of the city or other changes
in the situation, a sale in the manner prescribed by the statute
would be within the legitimate functions of the city as a municipal
corporation, and power to that end, conferred by the legislature at
any time, or in the act authorizing the taking, cannot invalidate the
delegated right to exercise the power of eminent domain.”
The power of the municipality to sell superfluous land under the
authority of such a statute could not be challenged at the time of
sale. If the title had been acquired, it could be sold. The only
question that could be raised would be one in the original condemnation
proceeding as to the power to take the land at all. That question would
be merely the question of good faith. The petitioner could be made to
file plans showing some reasonable need for the property sought to be
condemned; and the courts would not permit an obvious abuse of the
power of eminent domain either by the state legislature or by any of
its agencies. It is believed, however, that no question of abuse or bad
faith could arise when the legislature was shown to have authorized,
in its sovereign discretion, the taking of the whole title as the most
direct and convenient method of controlling the use.
An instructive case bearing upon this argument is that of _Dingley_ v.
_Boston_, 100 Mass. 544. For the purpose of draining and grading up a
part of the Back Bay district, the Massachusetts legislature authorized
the city of Boston to take land within a certain area, and provided
that the title should vest in the city. The contemplated use, although
extensive, was merely temporary; when the land was filled and the
surface raised to a higher grade, the purpose for which it was taken
would have been accomplished. The Supreme Court, nevertheless, holds
that it was the object of the statute to authorize the taking of a fee
simple absolute, and that after the filling had been completed the
title remained in the city, subject to such use or disposition as the
authorities might deem expedient. The use being public, it could not be
said that the taking of a fee simple was any the less for public use
than the taking of a smaller estate would have been; the legislature
was sole judge of the expediency of taking one or the other. The court
speaks as follows:
“The act provides that the city government may first take the land,
and thereby transfer to the city a title in fee simple, without the
consent of the owners. It is contended that, as the only object of
the act is to abate a nuisance, the act ought only to have granted
the power to occupy the land temporarily until the object of the act
should be effected, and it should then be restored to the owners,
with a provision that the benefit done to the land should be applied
in offset to the damages. It is true that the raising of the grade
does not require an occupation of the land for a great length of
time. When this work is completed the nuisance will be abated, and
the land will be in a condition to be occupied by private persons.
But its condition will be greatly changed; almost as much so as
raising flats into upland. The former surface will be deeply buried
under the earth that will have been brought upon it, and the changed
condition is to be perpetual. If the old property is restored, the
new property which has been annexed to it must go with it. This
would be very unjust to the city, who have been compelled to incur
the great expense of destroying the nuisance, unless the owner were
required to make a reasonable compensation, which might be far beyond
the amount of the damages to which he would be entitled.
“It would be difficult to adjust the matter; and in many cases it
might operate harshly upon the owner to compel him to take and pay
for the improvements. On the whole, therefore, the plan of compelling
the city to take the land in fee simple, and the owner to part with
his whole title for a just compensation, would seem to be the most
simple and equitable that could be adopted; unless there is some
objection on the ground that a fee simple is more sacred than an
estate for life or years, or than an easement of greater or less
duration. We can see no ground for regarding one of these titles as
more sacred than another, or for regarding land as more sacred than
personal property. * * *
“Whether land be taken under the clause authorizing the making of
wholesome and reasonable laws, or by virtue of the clause authorizing
the appropriation of private property to public uses, it must in
either case be left to the legislature to decide what quantity of
estate ought to be taken in order to accomplish its purpose, and do
the most complete justice to all parties.”
If a municipality were justified in taking an area in order to control
the surroundings of a park or boulevard, the proceeding would not
be rendered illegal by the fact, if fact it was, that the hope of
pecuniary profit was a strong, or even the controlling, motive. If
there is a sound basis which justifies the action of public officials,
the motive by which those officials are actuated is not open to
judicial inquiry.[87]
If, then, it be a legitimate part of a public improvement—as few would
question that it is—to impose appropriate restrictions upon the use
and improvement of adjacent property, and if, as seems probable, the
condemnation of the entire title can be authorized for that purpose,
a municipal body could be empowered by the legislature to acquire
title to land outside of the physical area of improvement; and if the
municipality had also been authorized by the legislature to sell any
interest no longer needed in any of its land, it could sell the land
subject to all necessary conditions or restrictions; nor would it lie
in the mouth of any court to question the proceeding or brand it as
illegal because the real, efficient motive may have been to get the
benefit of the enhancement in the value of the property.
There is probably no constitutional obstacle to legislation investing
a city, park board, county, or other appropriate agency with power
to condemn as part of or supplementary to a public improvement such
contiguous area as the reasonable needs of the improvement itself might
require to be subjected to proper restrictions; nor could such a law
be condemned by reason of its also authorizing the sale of the land
subject to such conditions or restrictions as the public authorities
saw fit to impose upon it.[88]
If any local legislation authorizing the condemnation and sale of
surplus lands were brought to the test, the question for the courts
would be whether the use for which the property was taken was a public
one; and it must be borne in mind that upon this point the judgment
of the Supreme Court of a state would not be final. By the Fourteenth
Amendment to the Constitution of the United States it is provided that
no state shall deprive any person of property without due process of
law; and it is now settled that this clause prohibits the taking of
private property for any use that is not public. The United States
Supreme Court, however, has always paid the greatest deference to the
opinions of state legislatures and the state judiciary as to what uses
are public. The power of the United States Supreme Court to review
a state decision in this particular, and also the extreme respect
which will be paid to local decisions, are both well illustrated in
the case of _Clark_ v. _Nash_, 198 U. S. 361, sustaining a statute of
the state of Utah, by the terms of which an individual land owner was
empowered to condemn the right of conveying water in a ditch across his
neighbor’s land for the purpose of irrigating his own farm. Mr. Justice
Peckham, delivering the opinion of the court, said:
“In some states, probably in most of them, the proposition contended
for by the plaintiffs in error would be sound. But whether a statute
of a state permitting condemnation by an individual for the purpose
of obtaining water for his land or for mining should be held to be
a condemnation for a public use, and therefore a valid enactment,
may depend upon a number of considerations relating to the situation
of the state and its possibilities for land cultivation, or the
successful prosecution of its mining or other industries. Where the
use is asserted to be public, and the right of the individual to
condemn land for the purpose of exercising such use is founded upon
or is the result of some peculiar condition of the soil or climate,
or other peculiarity of the state, where the right of condemnation is
asserted under a state statute, we are always, where it can fairly
be done, strongly inclined to hold with the state courts, when they
uphold a state statute providing for such condemnation. * * *
“We do not desire to be understood by this decision as approving of
the broad proposition that private property may be taken in all cases
where the taking may promote the public interest and tend to develop
the natural resources of the state. We simply say that in this
particular case, and upon the facts stated in the findings of the
court, and having reference to the conditions already stated, we are
of the opinion that the use is a public one, although the taking of
the right of way is for the purpose simply of thereby obtaining the
water for an individual, where it is absolutely necessary to enable
him to make any use whatever of his land, and which will be valuable
and fertile only if water can be obtained.”
Again, in the very recent case of _Hairston_ v. _Danville & Western
Railway Co._, 208 U. S. 598, the facts were that the Supreme Court of
Virginia had sustained a proceeding by which a railroad condemned land
for a spur track to a tobacco factory, the owner of which agreed to
reimburse the company for the cost of acquiring the land. The decision
of the federal court sustaining the judgment of the state court was
delivered by Mr. Justice Moody, who said:
“When we come to inquire what are public uses for which the right
of compulsory taking may be employed, and what are private uses
for which the right is forbidden, we find no agreement, either in
reasoning or conclusion. The one and only principle in which all
courts seem to agree is that the nature of the uses, whether public
or private, is ultimately a judicial question. The determination of
this question by the courts has been influenced in the different
states by considerations touching the resources, the capacity of
the soil, the relative importance of industries to the general
public welfare, and the long-established methods and habits of the
people. In all these respects, conditions vary so much in the states
and territories of the Union that different results might well be
expected.... No case is recalled where this court has condemned as a
violation of the Fourteenth Amendment a taking upheld by the state
court as a taking for public uses in conformity with its laws.... We
must not be understood as saying that cases may not arise where this
court would decline to follow the state courts in their determination
of the uses for which land could be taken by the right of eminent
domain. The cases cited, however, show how greatly we have deferred
to the opinions of the state courts on this subject, which so closely
concerns the welfare of their people. We have found nothing in the
Federal Constitution which prevents the condemnation by one person
for his individual use of a right of way over the land of another
for the construction of an irrigation ditch; of a right of way over
the land of another for an aerial bucket line; or of the right to
flow the land of another by the erection of a dam. It remains for
the future to disclose what cases, if any, of taking for uses which
the state constitution, law and court approve will be held to be
forbidden by the Fourteenth Amendment to the Constitution of the
United States.”
It thus appears that it would require an extreme case of manifest
abuse of the power of eminent domain to lead the Supreme Court of the
United States to condemn as private a use which a state legislature
had recognized as public, and which had been sustained by the Supreme
Court of the state. If the abuse of power were manifest, the United
States courts would not hesitate to condemn the proceeding, even though
expressly sanctioned by the constitution of a state; but there is every
reason to believe that any method of taking and selling land justified
by the reasonable purpose of controlling the environs of a public place
would withstand the scrutiny of the United States Supreme Court if
sanctioned by the legislative and judicial departments of the state
government.
In concluding this topic, some experiments made in other states towards
taking more property than was demanded by the physical requirements of
an improvement, either to control the environs or for mere pecuniary
considerations, may be passed briefly in review. The experience of
foreign countries need not be recounted here, since some governments,
unlimited by constitutional restrictions, have conducted real estate
transactions of a wide range, far beyond anything that could reasonably
be contemplated in America. The State of New York had upon its statute
books early in the last century an act already adverted to, purporting
to authorize municipalities to take all of a connected tract of land
when only part was needed and to sell the surplus. This statute was
adjudged by the courts to be unconstitutional, in so far as it sought
to authorize the taking, against the owners’ consent, of land not
actually needed. A resolution, however, has, after many years, been
introduced (January 27, 1909), in the senate of the State of New York
for the submission of a constitutional amendment in the following
language:
“When private property shall be taken for public use by a municipal
corporation, additional adjoining or neighboring property may be
taken, under conditions to be prescribed by the legislature by
general law. Property thus taken shall be deemed to be taken for
public use.”
In Massachusetts, Section 4 of Chapter 50 of the revised laws provides
that the owner of abutting land liable to assessment may at a certain
stage of the proceedings give notice that he elects to surrender his
land; in which event the board may, if it thinks expedient, take the
whole parcel at its estimated value, and any part not required may
be sold. A somewhat similar statute, authorizing an owner to convey
to the city his entire property at its appraised value when part of
it was taken for widening a street, was involved, and by implication
sustained, in the case of _Dorgan_ v. _Boston_, 12 Allen, 223.