Carrying out the city plan

by Flavel Shurtleff

In Ohio[91] and Maryland[92] the principle is incorporated in legislation for the protection of parks, parkways, and approaches to public buildings and, as far as the language of the acts indicates, excess taking can be made only for these specific purposes. The Virginia Assembly of 1906 passed an act[93] giving the power to condemn and take more land than is necessary “when the use of the land proposed to be taken would impair the beauty, usefulness, or efficiency of the parks, plats, or public property, or which by the peculiar topography would impair the convenient use of a street or render impracticable without extra expense the improvement of the same.”

The nearest approach to the European idea of excess condemnation is found in the acts of Connecticut, 1907.[94] The language of this clause puts no limit on the amount of land which can be taken. Unless the courts establish such a limit a broad power is given. The city is allowed, in fact, to embark on a real estate speculation. By No. 315 of the acts of Pennsylvania, 1907, cities are allowed to acquire by appropriation private property within 200 feet of the boundary of parks, parkways, and playgrounds. This act also allows the resale of surplus land with restrictions in the deed.

The Massachusetts act is the only one directed specifically to the acquisition of remnants which are made practically unsalable because of the taking for public use, but only on this ground is it to be distinguished from the other legislation above cited. In all this legislation the purpose is to provide a more effective method of accomplishing an improvement. A primary purpose in every case is either to lay out or widen a public street or to acquire or protect parks, parkways, or approaches to public buildings. All of these purposes are without question public, and the taking of excess land is but an incident to an acknowledged public purpose; namely, to insure a more useful wide street or a more attractive parkway. There is no suggestion either directly or by inference in any of this legislation that the excess taking is anything more than an incident to a public purpose and a means of securing the more perfect and successful realization of that purpose.

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.