From the record it appeared that by ordinance, councils of Philadelphia undertook to appropriate certain land within 200 feet of a proposed parkway.
By ordinance of Jan. 16, 1913, the mayor was authorized to enter into an agreement on behalf of the city with the Bell Telephone Co., whereby the land so appropriated should be conveyed to the telephone company in fee, subject to certain building restrictions. The purpose of the transaction was admittedly to protect the parkway from the construction of an unsightly building in the vicinity.
The lower court held the act constitutional but awarded the injunction on the ground that the ordinance of Jan. 16, 1913, was defective in that it was not preceded by an ordinance prescribing general restrictions for the protection of the parkway. Plaintiff and defendant appealed.
Opinion:
“The view we take of the case requires us to determine the single question whether the purpose or use for which the city intends to take the plaintiff’s land is a public use within the constitutional provision permitting its appropriation under the power of eminent domain.... Primarily the question is for the legislative department of the government, but ultimately for the courts.... There is no constitutional or statutory definition of the words ‘public use,’ and none of the adjudicated cases has given a definition of the words which can have universal application. It has been held that the words are equivalent to public benefit or advantage, while numerous other cases hold that to constitute a public use the property must be taken into direct control of the public or of public agencies, or the public must have the right to use in some way the property appropriated.
We think this (latter) interpretation of the words ‘public use’ is in accord with their plain and natural signification, and with the weight of the best considered authorities. It furnishes a certain guide to the legislature as well as to the courts in appropriating private property for public use. It enables the state and the owner to determine directly their respective rights in the latter’s property. If, however, public benefit, utility or advantage is to be the test of a public use, then, as suggested by the authorities, the right to condemn the property will not depend on a fixed standard by which the legislative and judicial departments of the government are to be guided, but upon the views of those who at the time are to determine the question. There will be no limit to the power of either the legislature or the courts to appropriate private property to public use except their individual opinions as to what is and what is not for the public advantage and utility. If such considerations are to prevail, the constitutional guarantees as to private property will be of small moment....
We think that the sections of the Act of 1907, authorizing the acquisition of private property outside a public park, parkway and playground, are not a constitutional exercise of legislative authority. It will be observed that these sections confer authority to appropriate and resell with such restrictions as may be prescribed property outside the line of the parkway, and it is justified by declaring that it is done to protect the parkway and for the preservation of the view, appearance, light, air, healthfulness or usefulness thereof. The protection of the highway is the only ‘public use’ to which the land is to be applied. The property is not to be taken and held by the city for any use for which a statute confers on the city the right to appropriate it.... Prior to this legislation, the state had not authorized the taking of private property by the exercise of the power of eminent domain for such purpose. It is a step far in advance of the policy of the state as heretofore declared in her organic law, and is a liberal construction of a power which we have uniformly held must be strictly construed.
Holding as we do that the use to be made of property located outside a public highway is not a public use for which private property may be taken by the city against the consent of the owners, the effect of the act of 1907 is to permit the taking of the property of one citizen without his consent and vesting the title thereto in another.... One may be deprived of his home for the benefit of another. In view of its provisions conferring almost unlimited discretion on cities or their officials in exercising the powers granted, it is idle to say that the statute furnished no opportunity to produce such results or to promote a private purpose....
The court below is directed to enter a decree declaring unconstitutional so much of the Act of June 8, 1907, as authorizes cities to take and appropriate neighboring private property within 200 feet of the boundary line of property appropriated for public parks, parkways and playgrounds, ... and enjoining perpetually the city from appropriating plaintiff’s property outside of and adjacent to the parkway.”