Carrying out the city plan

by Flavel Shurtleff

3. A COURT WITHOUT JURY HAVING ORIGINAL OR APPELLATE JURISDICTION

New York.[22] When the board of estimate and apportionment of New York City authorizes the taking of land for street or park purposes, application is made to the supreme court for the appointment of three commissioners of estimate and assessment, to determine the compensation to owners and to assess as damages the cost of the proposed improvement, or such a proportion thereof as the board of estimate and apportionment directs, on lands deemed specially benefited. After hearing evidence an abstract of the report of the three commissioners or of a majority of them is filed in court at least thirty days before being presented formally to the court for confirmation, in order that petitions in writing against the confirmation of the report may be filed. The court gives a public hearing to remonstrants who have filed their written objections, and confirms or modifies the report, or in some cases sends it back to a new commission. The commissioners are directed by the statute to complete their work within six months unless granted an extension by the court for good cause. Their compensation is $10 a day.

This procedure was long regarded as unsatisfactory. In 1911 it was characterized by the New York press as “inordinately expensive,” because of the financial interest of the commissioners in protracting the proceedings; “generally inefficient,” because of the many incompetent commissioners selected for political reasons; and open to “flagrant abuse,” because the commissioners thus selected were likely to favor property owners who had political influence. By the adoption of a constitutional amendment at the general election November 4, 1913, the legislature is permitted to pass an act which will give to a justice of the supreme court the power to dispose of all matters concerning condemnation formerly in the hands of the commissioners of estimate and assessment.[23] In the opinion of the corporation counsel, Archibald R. Watson, “A justice of the supreme court with undivided responsibility, with no interest to prolong the proceedings, not susceptible to influence and generally of high grade character and capacity, should be able to dispose of condemnation matters with results far preferable than by means of commissioners.”

Minneapolis. We have already described the procedure in appropriating lands for park purposes in Minneapolis up to the time of the confirmation of the awards by the district court.[24] The results are on the whole quite satisfactory. The appraisers are usually competent men and, although appeals are taken from their awards as confirmed by the board of park commissioners to the district court sitting without jury, the percentage of such appeals is not large, not more than 15 per cent in any proceeding, and the increase in awards on appeal is often merely nominal and rarely more than 20 per cent. There seems, however, little justification for two preliminary hearings, one before the appraisers and one before the park commissioners, on the question of land awards. The appraisal could as well be done by the park commissioners through the agency of a competent clerical force, as in Indianapolis, and the expense of appraisals and reappraisals would be avoided.

Kansas City. In Kansas City, Missouri, the petition for taking land for street purposes is brought in the municipal court which sits with a jury of six appointed by the presiding justice.[25] The verdict of the jury is confirmed by the common council of the city and appeals are allowed to the circuit court. In practice not more than 25 per cent of such actions are appealed from the municipal court. In the newer procedure for the taking of land for park purposes a saving of both time and expense, by eliminating the preliminary trial in the municipal court, is brought about by allowing the petition to be filed directly in the circuit court.[26] As in St. Louis, a corporation is allowed a hearing on the question of damages for land taken before a common law jury, but in Kansas City corporations do not demand common law juries. When the procedure was new, a corporation tried the experiment and the result was so disastrous that it is said never to have been attempted since. Presiding justices both in the municipal and circuit courts take care to appoint competent men. That satisfactory jurors can be obtained for $2.50 a day, which is the compensation allowed, is ample evidence that jury service in these cases is regarded as a civic duty and not as a desirable “job.”

Indianapolis. In Indianapolis the board of public works in takings for street purposes, and the board of park commissioners in takings for park purposes, have the same duties which in Kansas City are performed by a jury of six men. All objections to the taking, awards for damages, and the size of the specially benefited area as marked out by the commissioners, are disposed of in one hearing.[27] From the findings of the commissioners appeal lies directly to the circuit or superior court sitting without jury, and the amount of the judgment as found on appeal is final. The businesslike practice which has been adopted by the park commission under the act of 1909, appeals to the sense of fairness of the property owner and has proved most helpful in arriving at awards. In every taking the park board has the assistance of real estate experts as an advisory committee, and is kept in close touch with valuations by a complete card catalogue system which registers the actual consideration in transfers of property.

Although the act is only three years old, there has been at least one considerable taking in each park district. In the North Park there have been two, one involving an expense of $154,420 and the other $131,662. In all the takings for park purposes under the new act involving over $600,000 worth of property and several thousand owners, there have been only four appeals from the findings of the board, two of which have been decided by the superior court. In one an award of $10,000 was increased to $17,000 and in the other an award of $6,925 was increased to $9,800. In one proceeding alone there were 1,600 owners involved and only 50 were present at the hearing given remonstrants.[28]

CONCLUSIONS

The New York constitutional amendment provides the simplest method of ascertaining compensation. Owners of land are given one day in court in which all questions concerning the regularity of procedure and the amount of compensation are determined. There is in such a procedure the least chance for waste of time or money in preliminary hearings, and all the responsibility for decisions is put on the justice who presides in the case. But no judicial decision has sufficiently tested whether the land owner’s rights are properly safeguarded. The procedure in Indianapolis has had the advantage of a thorough testing. Its results are satisfactory enough both to the city and to the land owner to recommend its adoption in any jurisdiction contemplating a change in procedure. But where a common law jury is prescribed by the constitution the adoption of the Indianapolis procedure in its entirety would not be possible without a constitutional amendment. No comment is necessary to emphasize the difficulty of passing such an amendment, and there is considerable question whether it would be necessary or expedient in the light of experience in Chicago and Cleveland where the awards of common law juries have been fair both to the municipality and to property owners.

The worst that can be said of the jury in condemnation cases is that in some jurisdictions it has a lively prejudice against the city as a petitioner in eminent domain cases. The opinion is also generally held by those who have had experience in the presentation of evidence to a jury that the usual uncertainty in a jury’s findings in any civil case is only increased by the technical nature of the evidence presented in condemnation cases. The jury is asked to estimate land values without having had any previous experience. It must depend entirely on its view of the premises and on the opinion of real estate experts for its decision. About all a fairminded jury can do in such cases beyond striking a mechanical average of the widely divergent expert testimony is to discount the several claims in proportion to the impression made upon the jury by the individual experts,—and the jury is asked to measure the relative elasticity of conscience of experts after a too meager character study.