Carrying out the city plan

by Flavel Shurtleff

THE CONSTITUTIONALITY OF EXCESS TAKING

The Pennsylvania act is the only one which has been tested by judicial decision.

In July, 1912, the City Council of Philadelphia authorized the taking of excess land under the legislation of 1907, in connection with the proposed parkway from City Hall to Fairmount Park. The question of the constitutionality of the act was squarely raised and the lower court decided in favor of its validity, but this decision was reversed by the supreme court of the state.[95]

That the “remnant act” of Massachusetts would be declared constitutional is suggested in the answer of the Massachusetts supreme court to a question of the legislature in 1910. The question arose out of the necessity for a traffic thoroughfare between the north and south terminal stations in Boston. It appeared to the legislature impossible to construct a direct thoroughfare between these stations, unless a power of eminent domain were given which would allow the acquirement and reallotment of the land adjacent to the thoroughfare in lots suitable for mercantile buildings. As presented to the court the question was as follows:

“Is it within the constitutional power of the legislature to authorize the city of Boston, or such other public authority as the legislature may select, to lay out such a thoroughfare and rear streets, and to take not only the land or easements necessary for the same, but also such quantities of land on either side of said thoroughfare or between the same and said rear streets as may be reasonably necessary for the purposes hereinbefore set out, with a view to the subsequent use by private individuals of so much of the property taken as lies on either side of said thoroughfare, under conveyances, leases, or agreements which should embody suitable provisions for the construction on said land of buildings suited to the objects and purposes hereinbefore set out and for the use, management and control of said land and buildings in such manner as to secure and best promote the public interests and purposes hereinbefore referred to; assuming that the act provides just compensation for all persons sustaining damages by the said takings.”[96]

The supreme court interpreted the question briefly as meaning “Can land be taken with a view to its subsequent use by private individuals?” and its holding is that where the purpose of excess taking is primarily the creation of lots suitable for use of private individuals, such a taking is clearly unconstitutional. The court seems to make a distinction near the end of the opinion between cases where the excess taking is merely incidental to the main purpose, and cites the remnant act as such an example. We have therefore the suggestion that the remnant act might be found to be a constitutional exercise of power. The suggestion is of course of no value as a precedent, but is helpful as showing the sentiment of the justices of the supreme court of Massachusetts.

The doubtful constitutionality of the acts containing the excess-taking principle and the dissatisfaction with the limitation on the exercise of the power of eminent domain, have resulted in the effort to modify the limitation on the powers as now contained in state constitutions by constitutional amendment. Both the Massachusetts and New York legislatures have passed such amendments, which were submitted to the people of both states in the fall of 1911.[97] The New York amendment was defeated[98] but it is valuable for purposes of comparison. The Massachusetts amendment was passed by a large vote, and at the legislative session of 1912 a special act gave the city of Worcester the right to take excess land for a street widening.[99] The people of Wisconsin and Ohio in 1912 adopted amendments containing similar wide powers[100] of excess condemnation.

The New York amendment provided that when private property was taken for public use by a municipal corporation “additional adjoining and neighboring property may be taken under conditions to be prescribed by the legislature by general laws; property thus taken shall be deemed to be taken for a public use.”

From the viewpoint of the believer in excess taking as an easy means of correcting a defective street system and as the handmaiden of reconstruction, the amendment offered in 1911 which was not accepted by the people of New York was ideally phrased. Any excess taking which the legislature saw fit to authorize was made constitutional, whether that taking was a mere incident to a better realization of a public purpose or whether it was primarily a speculation to recoup the city’s investment in reconstruction. It is not an answer to the extreme radicalism of the amendment to say that the legislature would probably hedge the power of excess taking with limitations. Radical legislation even in New York is not impossible, and a most radical act of a radical legislature would have had the stamp of constitutionality placed upon it by this amendment if the people had accepted it.

The Massachusetts amendment, on the other hand, limits both the application of the principle and the extent of the excess taking. It applies only to the “laying out, widening or relocating of highways” and the amount of land in excess which may be taken is “not more in extent than would be sufficient for suitable building lots on both sides of such highway or street.” The amendment leaves open for dispute the question of what shall be “a suitable building lot,” but this can best be defined by special act when the peculiar needs of each improvement are considered.

The Wisconsin amendment makes constitutional an excess taking of neighboring property for streets, squares, public parks, parkways, civic centers, and playgrounds and their surroundings, and after the improvement surplus land may be conveyed with restrictions to protect the improvement.

Before these amendments to the constitution were proposed, court decisions were frequent that it was the province of the legislature to determine whether a proposed taking was necessary for the public use. When once the legislature had so determined, only in case of a manifest injustice or where the legislature had obviously overstepped the bounds of the constitution would the supreme court interfere with the legislative action. The amendments take away the limitation set in the state constitution and therefore leave no constitutional question for the state judicial tribunal to determine. Whether the federal courts would take jurisdiction of such a case from the state court on the ground that property is taken without due process of law in violation of the fourteenth amendment, is still undetermined.