That failure of administration has resulted from the persistent failure of public opinion to correct the practice of juries of giving awards “contrary to the facts and the law” to the persons whose lands are taken for public use; and from the persistent failure of the Legislature to correct the obvious shortcomings of the law. For this failure of public opinion and of the Legislature there are various reasons. In the first place, it has been entirely impossible to overcome the public sympathy with the private individual against whom the city was proceeding. That sympathy is based largely upon the notion, ineradicable from the mind of the average citizen, that the city, like the State, has large resources upon which it can draw, and which it can replenish without in any way affecting the citizen. This sympathy with the individual and this optimism as to the city’s resources acted with all the more freedom from check, since the laws which authorized the cities to go into real estate speculations for the purpose of recovering a part of the cost of street improvements were not enacted in response to any general or compelling conviction of the body of the citizens, that the cost of street improvements must be reduced. The average man takes no permanent interest in the question of the cost of public improvements; and laws of the kind here discussed are enacted only in consequence of the activity of a small body of citizens, who appreciate keenly the necessity of husbanding the city’s resources. When such laws, which have been enacted without the support of an intelligent and compelling public spirit, come to be administered by the average juror, the city’s interests inevitably are lost sight of, in the desire to do ample justice to the individual whose property the city takes by compulsory powers.
Turning next to the question whether the cities whose operations have been examined have been able to sell to the best advantage the lands acquired, the answer once more is in the negative. Baron Haussmann, summing up his vast experience with city activity and private activity in Paris in 1852 to 1869, said that private enterprise had innumerable ways of nursing and developing real estate that the city neither could invent nor imitate.
In conclusion, it may be added that in Paris there has been since 1876 an exceedingly intelligent minority which has held that the city should not itself execute any more street improvements, but should leave such operations to private enterprise, subsidizing the latter for that purpose.
In London, the Metropolitan Board of Works was succeeded in 1889 by the London County Council. The latter body in 1890 asked Parliament for permission to supplement the practice of “recoupment” by the so-called American practice of assessing a betterment tax upon property enhanced in value by public improvements. One may, perhaps, go farther, and say that the London County Council was ready to place its main reliance upon the practice of assessing a betterment tax, and to relegate to a subsidiary position the practice of recoupment. Be that as it may, the London County Council, from 1890 to 1898, declined to proceed with any large improvement schemes, because Parliament refused to give it power to employ the betterment system as extensively as it desired to employ it. In 1898, or 1899, Parliament yielded, and the London County Council proceeded with the Strand improvement scheme.
REPORT ON THE FRENCH SYSTEM FOR TAKING LAND BY RIGHT OF EMINENT DOMAIN. House Doc. 288, pp. 44-52
In order to appreciate the system which obtains in France for taking land by right of eminent domain, it should be understood at the outset that the initiative for the construction of public works is rarely taken by the local deliberative body, the municipal council, for instance, but almost always by the executive, or, as they would term it, the administration, the head of which is the chief of the State, with his various ministers, while the prefect in each department and the under prefects and other officers represent the lower ranks of the administrative hierarchy.
This fact explains why the preliminary procedure, which has for its object to determine with careful regard for private interests the exact limits of the land required to be taken, is, even when deliberative in character, considered a part of executive rather than of legislative functions.