[122] Manuscript Report of London County Council Improvement Committee, 1910.
[123] Massachusetts House Document No. 288 of 1904, p. 76.
[124] Ibid., p. 76.
[125] Customary easement along parkways in many cities.
[126] Copley Square case, see pp. 19 ff.
[127] Restrictions on certain Boston parkways.
CHAPTER V
USE OF THE POLICE POWER IN THE EXECUTION OF A CITY PLAN
The control over city building by reason of land ownership is not peculiar to a governmental agency, nor does it depend on legislative authority. Possession of land is the only essential, whether that possession be in a municipal corporation, or in a private corporation organized as a land company for the sole purpose of directing the development of the whole or parts of a city in accordance with a plan.
The type of control over city building which we are now to consider, however, is peculiar to a governmental agency. It grows out of the duty of the administrative body representing all the people to protect the rights of all from individual aggression. Through the process of acquiring lands and rights in land, the city merely by wise use of its possessions and without the exercise of governmental authority may induce the kind of development which is desirable. This process is gradual and may escape public notice. But in acting as the guardian of the community the city says to the individual, “Thou shalt not,” and by ordinance it restrains him from doing things on his own land which would damage the health, safety, or morals of the community.
In exercising this power the city council passes an ordinance, and the court determines whether the purpose of the ordinance is confined to those matters which have a real and substantial relation to the public welfare and whether the ordinance is reasonably calculated to carry out this purpose. These are the only tests applied. In a limited field this power of restraint is exercised without question, and ordinances have the strength of custom and legal decision behind them. In a still larger field it is assumed that restraint can not be exercised. But the doubtful ground between is constantly being encroached upon either by ordinances restraining the power of the individual or by decisions denying the power of the community. The law as made and as interpreted by the courts is constantly changing as the sentiment of the community changes.