FOOTNOTES:
[86] Resolves of 1903, Chapter 86.
[87] Several of the conclusions are found in the Appendix, pp. [308] ff.
House Document No. 288 of 1904.
House Document No. 1096 of 1904.
[88] It was evidently intended to insert in section 29 a provision under which the Commonwealth might condemn the whole or any portion of the “adjoining property” if the owner of it failed to effect a purchase of the remnant offered for sale by the Commonwealth,[89] but the provision was not included in the act as passed.
[89] See draft of proposed act, House Document No. 288 of 1904.
[90] Acts of Massachusetts, 1904, Chapter 443.
[91] Acts of Ohio, 1904, p. 333. See Appendix for text, p. [268].
[92] Acts of Maryland, 1908, Chapter 166. See Appendix for text, p. 269.
[93] Acts of Virginia, 1906. Chapter 194. Approved March 14th. See Appendix for text, p. [271].
[94] Special Acts of Connecticut, 1907, No. 61. Section 7.
[95] Pa. Mutual Life Ins. Co. vs. Philadelphia, argued April 15, 1913. See Appendix, p. [275].
[96] Massachusetts Decisions, Vol. 204, pp. 606 ff.
[97] See Appendix for text, p. [279].
[98] The second attempt to pass such an amendment succeeded in 1913, but it is much more restricted in scope than that proposed in 1911. For text see Appendix, p. [248].
[99] Acts of 1912, Chapter 186.
[100] Wisconsin amendment to Article 11 of Constitution adopted November 4, 1912. See Appendix, p. [279]. Ohio amendment to Article 18, Appendix, p. [280].
[101] We refer to clear cases of the deliberate use of the method, especially in connection with street laying out. In the case of parks and parkways an entire lot is systematically condemned by certain boards whenever they find themselves compelled to take so costly a portion that the whole would be a better bargain. Even though a portion of the lot taken might lie entirely outside the line of any proposed construction a park commission could claim if pressed that its acquirement and planting were properly incidental to the park purpose of the improvement; and courts are very slow to upset an administrative decision on such a point. After acquirement the administrative authority can decide that the remnant is not needed by the public after all, and if properly authorized by the legislature may proceed to “abandon” or sell it for a suitable consideration.
In the case of the Burnt District Commission, created in 1904 (Acts of Maryland, 1904, Chapter 87), to deal with the emergency caused by the Baltimore fire, there was definite provision for the condemnation of entire lots in case a portion was needed for a public improvement and for the sale of the remnants at public auction. It is reported that this power was used in at least one case and that a remnant almost unusable alone was bought by a speculator at public auction and used in a manner calculated to extort blackmail from the owner next in the rear.
[102] Le Journal Officiel de l’Empire Français, June 18, 1868, January 13, 1869, November 28, 1869.
[103] Massachusetts House Document No. 288, 1904, p. 58.
[104] L’Economiste Français, May 31, 1884, June 18, 1887, September 9, 1903.
[105] L’Economiste Français, September 1, 1888. See also Massachusetts House Document No. 288 of 1904, pp. 60 ff.
[106] L’Economiste Français, August 23, 1890.
[107] Ibid., June 18, 1887.
[108] Ibid., June 18, 1887.
[109] Ibid., September 10, 1887.
[110] Massachusetts House Document No. 1096 of 1904, p. 5.
[111] Ibid., p. 6.
[112] Massachusetts House Document No. 1096 of 1904, p. 12.
[113] Massachusetts House Document No. 1096 of 1904, p. 14.
[114] Ibid., p. 13.
[115] Massachusetts House Document No. 1096 of 1904, p. 15.
[116] Edwards, P. J.: History of London Street Improvements, 1855-1897, p. 11. London, P. S. King & Son, 1898.
[117] Massachusetts House Document No. 288 of 1904, p. 65.
[118] Edwards, op. cit., p. 17.
See also Report of the Massachusetts Commission on the Right of Eminent Domain. House Document No. 288 of 1904, p. 68.
[119] Edwards, op. cit., pp. 134, 135, 136, 137.
[120] Massachusetts House Document No. 288 of 1904, p. 67.
[121] Op. cit., pp. 67-68.
[122] Manuscript Report of London County Council Improvement Committee, 1910.
[123] Massachusetts House Document No. 288 of 1904, p. 76.
[124] Ibid., p. 76.
[125] Customary easement along parkways in many cities.
[126] Copley Square case, see pp. 19 ff.
[127] Restrictions on certain Boston parkways.
CHAPTER V
USE OF THE POLICE POWER IN THE EXECUTION OF A CITY PLAN
The control over city building by reason of land ownership is not peculiar to a governmental agency, nor does it depend on legislative authority. Possession of land is the only essential, whether that possession be in a municipal corporation, or in a private corporation organized as a land company for the sole purpose of directing the development of the whole or parts of a city in accordance with a plan.
The type of control over city building which we are now to consider, however, is peculiar to a governmental agency. It grows out of the duty of the administrative body representing all the people to protect the rights of all from individual aggression. Through the process of acquiring lands and rights in land, the city merely by wise use of its possessions and without the exercise of governmental authority may induce the kind of development which is desirable. This process is gradual and may escape public notice. But in acting as the guardian of the community the city says to the individual, “Thou shalt not,” and by ordinance it restrains him from doing things on his own land which would damage the health, safety, or morals of the community.
In exercising this power the city council passes an ordinance, and the court determines whether the purpose of the ordinance is confined to those matters which have a real and substantial relation to the public welfare and whether the ordinance is reasonably calculated to carry out this purpose. These are the only tests applied. In a limited field this power of restraint is exercised without question, and ordinances have the strength of custom and legal decision behind them. In a still larger field it is assumed that restraint can not be exercised. But the doubtful ground between is constantly being encroached upon either by ordinances restraining the power of the individual or by decisions denying the power of the community. The law as made and as interpreted by the courts is constantly changing as the sentiment of the community changes.
A too intensive use of land is the chief contributing cause to poor housing, and shares with poor street planning the responsibility for economic losses consequent on every kind of street congestion. A use of land either for buildings unfit structurally for habitation or for other purposes offensive to the occupants of surrounding land reacts upon the use of the latter, tends to instability in values, and may blight a district otherwise adapted to a higher economic use, as for residence or retail trade. A well built city would control by means of segregation the use of land for purposes that would seriously conflict with those of other owners, and would insist on sanitary and structural excellence for its homes. Public control of all such matters on private land is accomplished directly under the police power. A complete catalogue of municipal regulations which limit the use of private land is not within the scope of this chapter, since many such regulations have little or no influence on the physical development of the city; but those which most affect the city plan will be considered under (1) limitations on the degree to which the intensive use of land may be carried, and (2) limitations on the degree to which the offensive use of land may be carried.