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.
THE EXPEDIENCY OF ADOPTING IN THE UNITED STATES THE EXCESS CONDEMNATION PRINCIPLE
We are not here considering the value of excess taking where the sole or even primary purpose is to recoup the municipality’s investment in a public improvement. Such a use of the power would probably not pass the constitutional test, would be too open to abuse, and would tend to draw municipalities into such large speculative holdings of real estate as might easily overstrain their credit. But in the cases where excess taking is made primarily to secure the greatest physical benefit from the improvement, the community is able incidentally to reap a portion of the increase in values caused by the investment of the community’s money through the sale of such land as is not actually needed for the improvement. This method of distributing the cost of an improvement is supposed to produce a larger financial return to the city than the special assessment method, and at the same time to avoid the expense of litigating with property owners the question of benefit.
1. FINANCIAL VALUE OF EXCESS CONDEMNATION
In cities where special assessments to cover a large portion of the cost of acquiring land are levied and collected, and the tax payers are not restive, there is little enthusiasm over the European method of financing reconstruction. But cities in which special assessments are ineffective or non-existent, as in Boston, Philadelphia, and cities of Ohio, see in excess condemnation an opportunity to get for the community a large portion of the increment resulting from reconstruction with less chance for litigation by the land holders. No city in the United States has yet experimented with such condemnation,[101] but precedents from abroad are confidently cited as establishing its financial value. To determine the soundness of this opinion would require an analysis of European reconstructions in which excess takings have been made, and such an analysis depends for its value so much on a first hand acquaintance with many various sets of local conditions that to attempt it here is impossible. A review of the available sources of information on the subject does not make out an overwhelming case for the financial success of excess condemnation.
Financial Results in France. From 1852 to 1869 new streets were laid out in Paris which required a total surface of 2,726,000 square yards. Under the law, the authorities were allowed to take in excess of actual need for street purposes only when the lots left after the taking were unsuitable in shape or size for the erection of proper buildings; but the policy of the French government allowed a very liberal construction of the law, and ‘remnants’ were taken in some cases 5,000 square feet in area. Remnants which were at the time of the taking considered unsuitable for building purposes were subsequently subdivided into at least two lots, each of which was sold for a building lot. Just how much excess land was taken for the purpose of new streets in this period is not known. In 1869 the sales of such land had totaled $51,800,000, and there was still on hand 728,400 square yards, valued at $14,400,000. The cost of all the land taken was $259,400,000. Valuing the excess taking at $66,200,000, the land actually used for street purposes cost $193,200,000.[102] “In other words, the sale of lands purchased in excess of the requirements for the purpose of making new streets, together with the sale of 390,000 square yards obtained through the discontinuance of old streets, yielded only 25.5 per cent of the original outlay upon land—$259,400,000. That means that the efforts to secure a part of the increase in values resulting from the laying out of 56.25 miles of streets proved unsuccessful.”[103]