c. 323, and the existence of this street constitutes a breach of the

Chapter 1129,232 wordsPublic domain

covenant in the deed if the statute gave the board authority to lay it out. It is contended that the statute is unconstitutional ... because in section 9 it provides that no compensation shall be given for land taken for a street, if the owner, after the filing of a plan in accordance with the statute, shall erect any building within the boundaries of any way and not remove it when required by the street commissioners.”

* * * * *

“This was intended to prevent any use of property inconsistent with the plan after the filing of a plan and before the laying out of a way. If it could have that effect, it might materially interfere with the use which an owner might desire to make of his estate for many years after the filing of the plan and before the laying out of a way. The statute provides no compensation for this interference with private property. The legislation can not constitutionally so interfere with the use of property without giving compensation to the owner.”...

“In the act before us, there is no express prohibition of the owner’s use of his property, but it is declared that if he uses it otherwise than in accordance with the plans of the street commissioners it may be taken from him for a way without giving him compensation. This attempt to except him from the general rule in regard to the taking of property under the right of eminent domain is unconstitutional and ineffectual.”

The court then finds that the unconstitutional parts of the statute are not so connected with the rest of the statute as to invalidate it, and that the street laid out under the provisions of the statute became a legally located public way, and that its existence constituted a breach of the covenant in the deed.

D. BILL-BOARDS

Bill-board decisions may be thus classified:

I. Where the ordinance has been held invalid on the ground that its purpose was the removal of the bill-boards for aesthetic reasons and where the character of the bill-boards as nuisances was not raised, the decisions are uniformly against the reasonableness of the ordinance.

People _vs._ Green, 85 N. Y. App. 400.—The ordinance prohibited the posting of any advertisement whatever upon fences enclosing private property fronting on or adjacent to any public park. There was no claim that the posting of advertisements in any such places was an injury to the morals, health or safety of the city. The ruling was merely against the extension of the police power for aesthetic purposes.

Commonwealth _vs._ Boston Advertising Co. 188 Mass. 348.—The ordinance prohibited all signs so near a parkway as to be visible to the naked eye and was clearly intended to accomplish aesthetic purposes.

Varney _vs._ Williams, 100 Pac. Rep. 867.—The ordinance absolutely prohibited maintenance and erection of all bill-boards for advertising purposes. There was no attempt to restrict its operation to bill-boards that were insecure or otherwise dangerous or to advertising that might be indecent. “Bearing in mind that the ordinance does not purport to have any relation to the protection of passers by from injury by reason of unsafe structures, to the diminution of hazard of fire, or to the prevention of immoral displays we find that the one ground upon which the town council may be thought to have acted is that the appearance of bill-boards is or may be offensive to the sight of persons of refined tastes.” The promotion of aesthetic or artistic consideration has never been held to justify an exercise of the police power.

II. Where the court considers the ordinance as an attempt to protect either the health, safety or morals of the community and finds that it is an unreasonable regulation.

State _vs._ Whitlock, 149 N. C. 542.—The ordinance prohibited the erection of bill-boards on the lot line. The court found that this was an invasion of private rights, since such structures might be built with absolute safety.

Crawford _vs._ City of Topeka, 51 Kas. 761.—The court, in holding the ordinance unreasonable, said: “In what way can the erection of a safe structure for advertising purposes near the front of a lot endanger public safety any more than a like structure for some other lawful purpose. Perhaps regulations might be made with reference to the manner of construction so as to insure safety but the absolute prohibition would be an unwarranted invasion of private rights.” The unreasonableness of the ordinance is seen when it is considered that the posting of a harmless paper upon a structure changes it from a lawful to an unlawful one. To the same effect are the following cases: Bryan _vs._ City of Chester, 212 Pa. St. 259; Bill Posting Sign Co., _vs._ Atlantic City, 71 N. J. Law, 72; Chicago _vs._ Gunning System, 214 Ill. 628; Passaic _vs._ Patterson Bill Posting Co., 72 N. J. Law, 285.

II. PROCEDURE IN ACQUIRING LAND BY CONDEMNATION AND IN ASSESSING BENEFITS

AMENDMENT TO CONSTITUTION OF NEW YORK, Art. 1, Sec. 7. Adopted Nov. 4, 1913

When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, _by the supreme court, with or without a jury but not with a referee_, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of free-holders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.

_The legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, extending, or relocating parks, public places, highways or streets, provided, however, that the additional land and property so authorised to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land and property has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased._

Words in italics are new.

ACTS OF NEW YORK, 1911. Chap. 679

AN ACT to amend the Greater New York charter, in relation to the payment of the cost of certain public improvements.

_The People of the State of New York, represented in Senate and Assembly, do enact as follows_:

Section 1. Chapter six of the Greater New York charter, as re-enacted by chapter four hundred and sixty-six of the laws of nineteen hundred and one, is hereby amended by adding thereto a new section, to be known as section two hundred and forty-seven, to read as follows:

§ 247. Before a public improvement of any kind (except an improvement to be made pursuant to the rapid transit act) involving the acquisition or the physical improvement of property for streets, public places, parks, bridges, approaches to bridges, for the disposal and treatment of sewage or the improvement of the waterfront, or involving both such acquisition and physical improvement of property, which acquisition or physical improvement, or both, is estimated to cost the sum of fifty thousand dollars or more, shall be authorized, the board of estimate and apportionment may determine in what manner and in what shares and proportions the cost and expense of the acquisition or physical improvement, or both, shall be paid by the city of New York, by one or more boroughs thereof, by a part or portion of one or more boroughs thereof, or by the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby.

If said board shall determine that the cost of such acquisition or physical improvement, or both, shall be apportioned between or among the city of New York, one or more boroughs thereof, a part or portion of one or more boroughs thereof, or the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby, the said board may also determine in what manner and in what proportion the cost and expense of such acquisition or physical improvement, or both, shall be borne either by the city of New York, by one or more boroughs thereof, by a part or portion of one or more boroughs thereof, or by the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby.

KANSAS CITY _vs._ BACON et al. 157 Mo. 450

VALLIANT, J. Appeal from a judgment of the circuit court of Jackson county assessing benefits against property of the defendants in the proceedings to establish Penn Valley park in Kansas City.

For the establishing of the park 134 acres of land were condemned and the total amount assessed as the value thereof to be paid the owners was $870,759.60, and for the payment of that amount assessments as of benefits were made on a large number of lots included in what is known as West Park district, among which were lots owned severally by defendants Bacon and Monroe. The assessments on the lots of Mrs. Bacon aggregated $3,252.49; those on the lots of Monroe, $991.17. The amount assessed against the city as general benefits was $1.

* * * * *

The point against which the main force of appellants’ argument is directed is instruction 11 given at the request of the city, and which is:

“11. By your verdict you shall show a correct description of each piece or parcel of property taken and the value thereof, and of each piece or parcel of private property damaged and the amount of injury thereto. You shall also show by your verdict the amount, if any, assessed against the city, and shall show the amount of benefits assessed against each piece or parcel of private property found benefited within the benefit district.

In estimating the benefits that may accrue to the city and to the public generally, or to any property in the benefit district by reason of the proposed improvement, you shall consider only such benefits as are direct, certain and proximate.”

* * * * *

The law contemplates that a public improvement may bring a benefit to the property of individuals separate from that which it brings to the city in general, and that it may bring a benefit to the city in general separate from that which it brings to the property of the individuals, and that when it comes to apportioning the cost, the individuals and the city should each bear the burden in proportion to the respective benefit, but the benefit in the one case must be as “direct, certain and proximate” as in the other.

* * * * *

Conceding all that the learned counsel say concerning the difference between general and special taxation, we do not see how it affects the question relating to the character of the benefits the city is required to pay for in a case like this. And if it is lawful for the jury to estimate the benefit to the city at large with a view to charging a proper share of the cost of the improvement to the city and thereby to that extent relieve the burden of the property owners; that is to say, if that feature of the law which contemplates laying a portion of the burden on the city at large is not in violation of the fourteenth amendment to the Constitution of the United States, then there must be some rule to guide the jury in assessing those benefits, and if it is not proper to instruct the jury that the only benefits to the city at large which they are to consider are such “as are direct, certain and proximate,” then the contrary is true, and they should be instructed to consider benefits that are indirect, uncertain and remote. We recognize that the task of assessing benefits either to private property or to the city at large is a very difficult one, and that the temptation to the jury to indulge in conjecture is great, but still they ought to be admonished that the law requires them to use their reason and judgment, and not their imagination. The provision of the law requiring the benefits to the city at large to be estimated by the jury should either be eliminated entirely or else the jury should be instructed as to what the law means by such benefits, and if it does not mean such “as are direct, certain and proximate,” it is meaningless.

* * * * *

The specific charge of inequality before the law that these appellants make is that the city has been relieved of its just proportion of the cost of the park, and that portion has been laid, together with their own burden, on these appellants. In their brief they say that the jury should first have estimated the benefit to the city at large and should have charged only the balance of the cost as benefits against the private property, that the assessment of one dollar against the city was no assessment at all.

If the case was given to the jury under proper instructions, whatever opinion we may have as to the fact, we can not say as a matter of law that an assessment of merely nominal benefit was unlawful.

* * * * *

See also Kansas City _vs._ Bacon 147 Mo. 259, in which this language is found:

“In the absence of misleading instructions or evidence of misconduct a verdict of one dollar against the city at large is not as a matter of law ground to disturb a verdict.”

In this case there was an assessment on property holders of $600,000, and of $1.00 against the city.

And:

Kansas City _vs._ Smart, 128 Mo. 272, where there was an assessment of $140,000 against the benefit district and $1.00 against the city.

PARK LAW OF INDIANAPOLIS. Chap. 231. Acts of Indiana, 1911

AN ACT concerning the “department of public parks” in cities of the first and second classes, defining its powers and duties, conferring certain powers upon the common council and mayor of such cities in relation to said park department, legalizing appointments of boards of park commissioners in such cities, and acts done by such boards, repealing conflicting laws, and declaring an emergency.

[S. 378. Approved March 6, 1911.]

SECTION 1. CITIES—FIRST AND SECOND CLASS—DEPARTMENT OF PARKS.

SECTION 2. PARK COMMISSIONERS—TERMS.

SECTION 3. ORGANIZATION—REPORTS—MEETINGS—FUNDS.

SECTION 4. CONTROL OF PARKS AND BOULEVARDS—POWERS.

SECTION 5. LETTING OF CONTRACTS.

SECTION 6. BREACH OF AGREEMENT—SUIT—RULES—TAXATION.

SECTION 7. SALE OF PARK LANDS—PARK LINE—AMUSEMENT PLACES.

SECTION 8. BEQUESTS OF PROPERTY—USE AND CONTROL—GARDENS, ETC.

SECTION 9. POWER OVER WATERWAYS, ETC.

SECTION 10. CONDEMNATION—EMINENT DOMAIN. The said board of park commissioners are authorized to exercise the power of eminent domain within such city, for the purpose of carrying out any of the provisions of this act, and outside of such city within five miles of the limits of such city. And in case such board of park commissioners cannot agree with the owners, lessees or occupants of any real estate selected by them for the purposes herein set forth, they may proceed to procure the condemnation of the same as hereinafter provided, and in addition thereto, when not in conflict nor inconsistent with the express provisions of this act, may proceed under the general laws of the State of Indiana governing the condemnation of the right of way for the purposes of internal improvement which may be in force at the time, and the provisions of such laws are hereby extended to parks, parkways, park boulevards and pleasure driveways, or parts thereof, so far as the same are not in conflict or inconsistent with the terms of this act.

SECTION 11. COMMON COUNCIL—PARK DISTRICTS. The common council of any such city shall have power, by ordinance upon and in accordance with the recommendation of the board of park commissioners, to lay off and divide the territory thereof into any number of park districts that the conveniences of the citizens of such city and of administration of the department of public parks may require; and, after such districts are established, may from time to time, in like manner, add new territory to any established district, or create new districts from territory which may be annexed to any such city. When such division is thus made of the territory of any such city into districts, or when alterations are thus made in the districts, the boundaries thereof shall be accurately defined, and the descriptions of boundaries shall be entered by such board at full length in the records of such board and shall be recorded in the office of the recorder of the county in which such city is situated; and a duly authenticated copy thereof shall be filed with the comptroller of such city.

SECTION 12. BOULEVARD—PROCEEDINGS TO IMPROVE. The board of park commissioners of any such city shall have the power to order the improvement of any boulevard or any pleasure driveway or part thereof, under the control of such board, by paving the same, curbing and constructing sidewalks thereon, or either paving, curbing and constructing sidewalks thereon in the same manner and subject to the same limitation as to form and procedure, and to the same extent as is or may be in the future conferred upon the board of public works of any such city to improve any street, alley or sidewalk within such city; the cost of such improvement of such boulevard or pleasure driveway shall become a lien upon property to the same extent, enforceable in the same manner, with the same rights as to payments by installments and appeal as are or may be provided for in the case of street and sidewalk improvements ordered by the board of public works; and the provisions of said laws applicable to street and sidewalk improvements ordered by the board of public works of any such city are hereby extended to the improvement of any such boulevard, or pleasure driveway: _Provided_, That said board shall have exclusive authority to determine the kind of pavement to be used. And said park board shall have the power to change and fix the grade of any boulevard, park boulevard, or public driveway, or public ground under its control, to the same extent as such power is now or may be in the future conferred upon the board of public works of any such city to change and fix the grade of any street, alley or public place within any such city: _Provided_, That whenever the land along one side of a boulevard or pleasure driveway is owned by the city or used by the city for park purposes, one-half the cost of such improvement may be assessed against the property benefited in such park district, or districts, to the extent and in the proportion the same shall be benefited as hereinafter provided; and in case it should be determined by said board that no part of the cost of such improvement is properly assessable against the property of a district, or districts, in which the improvement is made, the same may be paid by such city out of any funds available for such purposes.

SECTION 13. APPROPRIATION OF PROPERTY—IMPROVEMENTS. The board of park commissioners of such cities of the first and second classes, as supplemental to other powers conferred by this act, shall have the power, whenever in their discretion such course is advisable, to appropriate property in the manner hereinafter provided for the purpose of: (a) establishing a park, parkway, pleasure driveway or boulevard, or (b) widening or extending any park, parkway, pleasure driveway or boulevard, or (c) opening, widening, or extending any route or right of way for a sewer or channel of any water course connected with or necessary for the protection of any park, parkway, pleasure driveway or boulevard, or (d) constructing any embankment or levee along such water course for the protection of any such park, parkway, pleasure driveway or boulevard, or (e) constructing any bridge or viaduct upon or connected with any such park, parkway, pleasure driveway or boulevard, or (f) converting any street or alley connecting any parks, parkways and boulevards in any such city into a boulevard or pleasure driveway; and also said board shall have power, in the same proceedings, to provide for the construction of improvements of such property for a park, parkway, pleasure driveway or boulevard, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction necessary for the widening or extending of the same, in case such be the purpose for which the land is appropriated or to be appropriated; or to provide for the construction necessary for the opening, widening or extending of any such route or right of way for a sewer or channel of any such water course, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction of any such embankment or levee along any such water course as aforesaid, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction of any such bridge or viaduct, in case such be the purpose for which such property is appropriated or to be appropriated; or to provide for the converting of any such street or alley into a pleasure driveway or boulevard, in case such be the purpose of the appropriation; furthermore, such board may provide for the construction of any of the foregoing work or improvements when the property or part thereof necessary for the same has been secured by contract or otherwise as hereinafter provided.

SECTION 14. PROCEEDINGS IN APPROPRIATING PROPERTY. Whenever, as provided in the foregoing section, said board shall deem it advisable to appropriate property and in conjunction proceed with the work of construction, or to appropriate property, or to proceed with such construction when the property necessary, or part thereof, has been secured by contract or otherwise, it shall adopt a resolution declaring such purpose, describing the lands to be appropriated or used therefor, and such other lands as may be injuriously or beneficially affected by said proceedings, and in case improvement or construction is provided for in said resolution, shall cause proper plans and specifications and an estimate of the cost of the proposed work to be prepared by its engineer selected to do such work, which shall be open to inspection by all persons interested in or affected by the appropriation of such lands and the construction of such work, and cause notice of the passage and purport of such resolution and, in case of improvement or construction is provided for in said resolution, of the fact that such plans and specifications have been prepared and can thus be inspected, to be published in some daily newspaper of general circulation in such city once each week for two consecutive weeks. Such notice shall name a time, not less than ten days after the date of publication at which such board shall receive or hear remonstrances from persons interested in or affected by such proceeding. At the time so fixed therefor said board shall hear remonstrances, if any are presented, and after considering the same, take final action, confirming, modifying or rescinding their original resolution. Such action shall be final and conclusive upon all persons. In said resolution and notice separate description of each piece or parcel of property shall not be required, but it shall be sufficient description of the property purchased, or to be purchased, appropriated or damaged to give a description of the entire tract by metes and bounds, whether the same shall be composed of one or more pieces or parcels, and whether owned by one or more person or persons; also, it shall be sufficient, in said resolution and notice, to prescribe the limits within which private property shall be deemed benefited by the proposed improvement, which benefit districts may include one or more park districts, part or parts of such district or districts and lands benefited outside of said city: _Provided, however_, That at the time before the final adoption of said resolution the resident property-holders in any benefit district, as thus defined, shall have the right to remonstrate against any undertaking by said park board, the cost of which may in whole or in part be assessed against their property. In the event that a majority of such resident property-holders shall remonstrate in writing before the date set for such final adoption of such resolution, no assessment shall be made in such district for such purpose for a period of one year thereafter and then only upon a new resolution duly adopted.

SECTION 15. IMPROVEMENT BIDS—DEPOSIT.

SECTION 16. LIST OF PROPERTY—DAMAGES—BENEFITS. Upon such final order being made, as above provided, said board shall cause to be prepared a list or roll of all the owners or holders of property sought to be taken, if any, or which will be either injuriously or beneficially affected by the appropriation of such land and the construction of such work, or by either such appropriation or construction. Such list shall not be confined to the owners of property adjacent to the line of the proposed work, but shall extend to and include all property taken or injuriously affected thereby, and also shall include all lands benefited by the location, establishment, construction or improvement of any such park, parkway, pleasure driveway, boulevard, improvement or structure provided for in the foregoing sections, whether within or without the limits of said city, not more than five miles from the limits thereof. In addition to such list of names, the same shall show with reasonable certainty a description of such properties to be appropriated or affected, either injuriously or beneficially, belonging to such persons, and no greater certainty in names and descriptions shall be necessary to the validity of any assessment than is required in the assessment of taxes.

SECTION 17. ASSESSMENT—DAMAGES—BENEFITS. Upon the coming in of such list such board shall proceed to consider, determine and award, first, the amount of damages sustained by the owners of the several parcels of land required to be taken and appropriated, if any, as is provided for in the above sections of this act, or which will be injuriously affected thereby; second, to consider, determine and assess the amount of benefits accruing to the several tracts or parcels of property benefited by reason of the location, establishment and construction of any such park, parkway, pleasure driveway, boulevard, or other work or improvement provided for in the above sections of this act. No assessments of benefits shall be made in excess of fifteen per cent of the value of the land so assessed exclusive of the improvement upon the land so assessed; and the total of such assessment against any part or parcel of land assessed, during the ten year period of existence of powers herein conferred shall not exceed fifteen per cent of the value of the land so assessed. The damages awarded and the benefits assessed shall be severally shown as against each parcel of land shown on said list: _Provided_, That the board of park commissioners of any such city shall in any event direct the payment of the cost of any park, parkway, pleasure driveway, boulevard or construction of any improvement provided for in the above sections of this act, over and above the total amount of all assessments of benefits, or to the extent of the benefits to the city as a whole, as determined by said board, to be made out of the general park fund of any such city available for such purpose: _Provided further_, That in the event the total cost of any such park improvement, including cost of lands, construction, shaping of soil, planting of trees and shrubbery and other work and improvements called for in such resolution, and including costs of making assessments and collections, should exceed the total of benefits to such lands assessed plus the amount available from the general park fund or other sources for any such park improvement, then said board shall proceed no further under said resolution, but shall rescind all action therefrom taken. In case said board shall have ordered the cost of the construction of pavements, curbing and gutters, separately, under the provisions of section 12 hereof, to be paid by abutting property owners, as in said section provided, and it shall appear that the entire cost of the same can not be met by assessments against abutting property owners, not including such city, then such board shall have power to assess the remainder of the cost of such pavement, curbing and sidewalks against the lands of the district or districts wherein such proposed improvement is situate to the extent and in the proportion that the same shall be benefited, in the manner as provided for assessing the cost of other structures and improvements named in sections 13 and 14 of this act: _Provided_, That the resolution of such board shall in each instance state the method of proposed assessment to be adopted.

When said list shall have been thus completed said board shall cause to be published in some daily newspaper of general circulation in said city, once each week for two successive weeks, a notice describing the location of the lands appropriated, if any, or of the lands on which such improvement is to be made, and the general character of the improvement and the boundaries of the area or district to be assessed; said notice shall also state that the assessment roll, with the names of the owners in favor of whom damages have been awarded and against whom assessments have been made, and descriptions of property affected, with the amounts of preliminary assessments or awards as to each piece or parcel of property affected, is on file and can be seen in the office of said board. Said notice shall also name a day not earlier than ten days after the date of the last publication on which said board shall receive and hear remonstrances from persons with regard to the amount of their respective awards or assessments. Furthermore, said board shall cause a written notice to be served upon the owner of each piece or parcel taken or injuriously affected, showing separately each item of such determination as to lands or parts of lands so owned by him, by leaving a copy at his last and usual place of residence in such city, or by delivering a copy to such owner personally; and said board shall also cause to be mailed by United States mail a notice to the place of residence, if known, of persons owning lands or parts of lands against which special assessments have been made, showing each item of such determination as to such persons. In case any person affected be a non-resident, or his residence shall be unknown, then he shall be notified by publication in some daily newspaper of general circulation once each week for three successive weeks. Said notices shall name a day not earlier than ten days after service of such notice, or after the last date of publication, or after the date of mailing as above provided, on which said board shall receive and hear remonstrances from persons with regard to the amount of their respective awards or assessments. Persons not included in such lists of assessments or awards and claiming to be entitled to the same shall be deemed to have been notified of the pendency of the proceeding by the original notice of the resolution of the board and by the first publication as in this section provided.

SECTION 18. PROPERTY OF INSANE OR INFANTS.

SECTION 19. REMONSTRANCE HEARING. Any person notified or deemed to be notified under the preceding sections may appear before such board on the day fixed for hearing such remonstrances with regard to awards and assessments, and remonstrate against the same. All persons appearing before said board having an interest in said proceedings shall be given a hearing. After such remonstrances shall have been received and said hearings had, said board shall thereupon either sustain or modify, by increasing or decreasing the awards or assessments. Any person thus remonstrating, who is aggrieved by the decision of the board, may, within fifteen days thereafter, take an appeal to the circuit or superior court in the county in which such city is located. Such appeal shall only affect the amount of the assessment or award of the person appealing.

SECTION 20. APPEAL. Such appeal may be taken by filing an original complaint in such court against such city within the time named, setting forth the action of such board in respect to such assessment or award and stating the facts relied upon as showing an error on the part of such board. Such court shall rehear the matter of such assessment or award de novo, and confirm, lower or increase the same, as may seem just. In case such court shall reduce the amount of benefit assessed against the land of such property-holder ten per cent. of the assessment by said board, or increase the amount of damages awarded in his favor ten per cent. of the amount awarded by such board, the plaintiff in such suit shall recover costs, otherwise not. The amount of the judgment in such court shall be final, and no appeal shall lie therefrom.

SECTION 21. LOCAL ASSESSMENT DUPLICATE—LIENS.

SECTION 22. PAYMENT OF DAMAGES—TENDER.

SECTION 23. PAYMENT TO OWNERS—TITLE TO LANDS.

SECTION 24. RECORDING LAND DESCRIPTIONS.

SECTION 25. APPOINTMENTS VALID.

SECTION 26. TEN-YEAR LIMIT—ASSESSMENT. The power herein granted for the assessments of benefits shall expire ten years from the date at which this act shall take effect: _Provided_, That after the expiration of said ten year period, said board of park commissioners shall have and exercise powers therein granted in respect to the opening and improvement of streets, ways and boulevards, of which they have control, similar to powers of the board of public works of such cities in respect to streets and highways.

SECTION 27. AGGREGATE BENEFITS. The powers herein granted for the assessment of benefits against property, except as to powers similar to those of the board of public works of such cities, are hereby further limited as follows: The aggregate amount of benefits which may be assessed against property by such park board in cities of the first class during said ten year period, from and after the taking effect of this act, shall not exceed one million, two hundred and fifty thousand dollars. The total amount of such local benefits which may be assessed by such board of park commissioners in cities of the first class during any one year after the taking effect of this act, shall not exceed two hundred thousand dollars. The aggregate amount of benefits which may be assessed against property by such board of park commissioners in cities of the second class during said ten year period, from and after the taking effect of this act, shall not exceed five hundred thousand dollars. The total amount of such local benefits which may be assessed by any such board of park commissioners in cities of the second class during any one year after the taking effect of this act shall not exceed fifty thousand dollars: _Provided_, That if in any one year such board of park commissioners in any city of the first or second class should assess an amount less than the annual limitation herein contained, then and in that event any such board may, in the following or any subsequent year, make such assessments in excess of said annual limitation to the amount of such difference between such annual limitation and the amount assessed in any previous year. The limits herein fixed shall not be deemed to apply to any sum which may be raised from a general tax levy, and appropriated by the council of such city for the use of such park board, or received from any source other than through benefit assessments, but the limiting amounts herein named shall apply only to such benefit assessments, not including those ordered by powers similar to those of the board of public works.

SECTION 28. REPEAL.

SECTION 29. EMERGENCY.

ACTS OF MASSACHUSETTS, 1912. Chap. 339

AN ACT to authorize the City of Boston to abate a portion of the betterment assessments made on account of the laying out and construction of Columbia Road.

Section 1. The board of street commissioners of the city of Boston _may_ at any time within two years after the passage of this act abate such proportion of any assessment for a betterment made on account of the laying out and construction of Columbia Road from Franklin Park, in Dorchester, to Marine Park, in South Boston, not exceeding in the case of lots unimproved at the time of the passage of the order for the said laying out and construction twenty per cent, and in the case of lots improved at the time of the passage of said order and lots bordering on the parts of the said road formerly known as the Strandway and Dorchesterway thirty-three and one-third per cent, as said board shall deem just and expedient.

Section 2. Said board may by its certificate authorize the treasurer of the city to repay the excess of any amount paid on account of said assessments over the amounts determined as the revised assessments in accordance with the provisions of this act, and said excess shall be repaid by the treasurer from the appropriation from which the improvement was paid for to the person for whom payment was made, or to his legal representatives.

ACTS OF MASSACHUSETTS, 1912. Chap. 537

AN ACT to provide for reducing the betterments charged for the improvement of Bennington Boulevard in East Boston.

Section 1. The city of Boston is hereby _required_ to reduce the betterments charged for the improvement of Bennington Boulevard in the East Boston district of the said city in such manner and to such extent as shall be agreed upon by the city and the owners of the lands concerned. In case of their failure to agree, the amount of the reduction to be made under the provisions of this act shall be determined by the superior court for the county of Suffolk, if a petition therefor is filed in the office of the clerk of the court by the owners of the land within two years after the passage of this act. The case shall be heard by a single judge, if the parties so agree, or by a jury if either party requests a trial by jury; and the jury shall view the premises if either party so requests.

III. EXCESS CONDEMNATION

ACTS OF OHIO, 1904. Found in the Annotated Statutes C. 2, P. 755

All municipal corporations shall have power to appropriate, enter upon and hold, real estate within their corporate limits for the following purposes: ...

12th: For establishing esplanades, boulevards, parkways, park grounds, and public reservations in, around and leading to public buildings, and for the purpose of reselling such land with reservations in the deeds of such resale as to the future use of said lands so as to protect public buildings and their environs, and to preserve the view, appearance, light, air, and usefulness of public grounds occupied by public buildings and esplanades, and parkways leading thereto.

LAWS OF MARYLAND, 1908. Chap. 166

Condemnation of Property. Baltimore

To acquire by purchase or condemnation any land or any interest therein which it may require for school-houses, engine-houses, court-houses, markets, streets, bridges and their approaches, the establishment or enlargement of parks, squares, gardens or other public places, the establishment of esplanades, boulevards, parkways, park grounds or public reservations around, adjacent, opposite or in proximity or leading to any public building or buildings, or which it may require for any other public or municipal purpose; and also any and all land and property or interest in land and property adjoining and extending such distance as may be adjudged necessary from any property in use or about to be acquired for such esplanade, boulevard, parkway, park grounds or public reservation, as aforesaid, the use of which said adjacent property it may be deemed necessary or beneficial to subject to lawful restrictions or control, in order to better protect or enhance the usefulness of such public building or buildings or in any manner to promote the interests of the public therein, or to more fully effectuate the purpose of the establishment of such esplanade, boulevard, parkway, park grounds or public reservations, and to sell thereafter such adjacent lands or property subject to such reservations or restrictions as to the subsequent use thereof, as may appear advisable for the protection of such public building or buildings, or for enhancing the usefulness thereof, or in any manner to promote the interests of the public therein, or for better insuring the protection or usefulness of such esplanade, boulevard, parkway, park grounds or public reservations, or in any manner to better accomplish the purposes and serve the public interests for which they shall have been or shall be established. The Mayor and City Council of Baltimore may prescribe the procedure for condemnation of any land or property situated wholly within the City of Baltimore, which under the foregoing provisions it is authorized to condemn, but such procedure as the said Mayor and City Council of Baltimore may adopt shall include provision for reasonable notice to the owner or owners, and for appeals to the Baltimore City Court by any person interested, including the Mayor and City Council of Baltimore from the decision of any commissioners or other persons appointed to value such land or property, or interest therein. Nothing herein shall be construed as depriving the city of any power of condemnation for any purpose already vested in it. The Mayor and City Council of Baltimore shall have full power and authority to provide by ordinance for ascertaining whether any and what amount of benefits will accrue to the owner or possessor of any ground or improvements within the City of Baltimore by reason of the establishment or enlargement of any park, squares, gardens, esplanades, boulevards, parkways, park grounds, public reservations or other public places, for which said owner or possessor ought to pay compensation, and to provide by ordinance for assessing or levying the amount of such benefits on the property of persons so benefited; provided, that provision is made therein for reasonable notice to the person or persons against whom such benefits are to be assessed, and provided that provision be made for appeals to the Baltimore City Court by any person or persons interested, including the Mayor and City Council of Baltimore, from the decision of any board, commissioners, or other persons appointed or authorized to assess such benefits.

VIRGINIA ACTS OF ASSEMBLY, 1906. Chap. 194

Approved March 14, 1906

1. Be it enacted by the general assembly of Virginia, That any city or town of this Commonwealth may acquire by purchase, gift or condemnation property adjoining its parks or plats on which its monuments are located, or other property used for public purposes or in the vicinity of such parks, plats or property which is used and maintained in such a manner as to impair the beauty, usefulness or efficiency of such parks, plats or public property, and may likewise acquire property adjacent to any street the topography of which, from its proximity thereof, impairs the convenient use of such street, or renders impracticable, without extraordinary expense, the improvements of the same, and the city or town so acquiring any such property may subsequently dispose of the property so acquired, making limitations as to the use thereof, which will protect the beauty, usefulness, efficiency or convenience of such parks, plats or property.

2. This act shall be in force on and after ninety days from the adjournment of the general assembly of Virginia.

ACTS OF PENNSYLVANIA, 8 June, 1907. No. 315

AN ACT authorizing cities of this Commonwealth to purchase, acquire, take, use, and appropriate private property, for the purposes of making, enlarging, extending, and maintaining public parks, parkways, and playgrounds; authorizing the said cities to purchase, acquire, take, use, and appropriate neighboring private property, within two hundred feet of the boundary lines of such public parks, parkways and playgrounds, in order to protect the same by resale, with restrictions; authorizing the resale of such neighboring property, with such restrictions in the deeds of resale in regard to the use thereof as will protect such public park, parkways, and playgrounds; and providing for the manner of ascertaining, determining, awarding, and paying compensation and damages in all cases where property is taken, used, and appropriated for the said purposes.

Section 1. Be it enacted &c., That it shall be lawful for, and the right is hereby conferred upon, the cities of this Commonwealth to purchase, acquire, enter upon, take, use, and appropriate private property, for the purpose of making, enlarging, extending, and maintaining public parks, parkways, and play grounds within the corporate limits of such cities, whenever the councils thereof shall, by ordinance or joint resolution, determine thereon; That where such private property is outside of the city, it may be annexed thereto by ordinance of said city: And provided, That where any poorhouse properties are taken, and such cities shall have made adequate provisions for thereafter accommodating and supporting the poor of the districts, wards, and townships within such cities, wherein such poorhouses are located, nominal damages only shall be allowed for such taking, and the land shall be held on condition that such city shall continue to make adequate provisions for the poor of such districts, wards or townships.

Section 2. It shall be lawful for, and the right is hereby conferred upon, cities of this Commonwealth to purchase, acquire, enter upon, take, use, and appropriate neighboring private property, within two hundred feet of the boundary lines of such property so taken, used, and appropriated for public parks, parkways, and playgrounds, in order to protect the same by the resale of such neighboring property with restrictions, whenever the councils thereof shall, by ordinance or joint resolution, determine thereon: Provided, That in the said ordinance or joint resolution, the councils thereof shall declare that the control of such neighboring property, within two hundred feet of the boundary lines of such public parks, parkways, or playgrounds, is reasonably necessary, in order to protect such public parks, parkways, or playgrounds, their environs, the preservation of the view, appearance, light, air, health, or usefulness thereof.

Section 3. That it shall be lawful for, and the right is hereby conferred upon, the cities of this Commonwealth to resell such neighboring property, with such restrictions in the deeds of resale in regard to the use thereof as will fully insure the protection of such public parks, parkways, and playgrounds, their environs, the preservation of the view, appearance, light, air, health and usefulness thereof, whenever the councils thereof shall, by ordinance or joint resolution, determine thereon.

Section 4. The taking, using, and appropriating, by the right of eminent domain as herein provided, of private property for the purpose of making, enlarging, extending, and maintaining public parks, parkways, and playgrounds, and of neighboring property, within two hundred feet of the boundary lines of such public parks, parkways, and playgrounds, in order to protect such public parks, parkways, and playgrounds, their environs, the preservation of the view, appearance, light, air, health, and usefulness thereof, by reselling such neighboring property, with such restrictions in the deeds of resale as will protect said property, so taken for the aforesaid purpose, is hereby declared to be taking, using, and appropriating of such private property for public use: Provided, however, That the proceeds arising from the resale of any such property so taken, shall be deposited in the treasury of said cities, and be subject to general appropriation by the councils of said city.

Section 5. In all cases wherein cities of this Commonwealth shall hereafter take, use, and appropriate private property for the aforesaid purposes, by ordinance or joint resolution, if the compensation and damages arising therefrom cannot be agreed upon by the owners thereof and such cities, such compensation and damages shall be considered, ascertained, determined, awarded, and paid in the manner provided in an act entitled “An act providing for the manner of ascertaining, determining, awarding, and paying compensation and damages in all cases where municipalities of this Commonwealth may hereafter be authorized by law to take, use, and appropriate private property for the purpose of making, enlarging, and maintaining public parks, within the corporate limits of such municipality,” approved the eighth day of June, Anno Domini one thousand eight hundred and ninety-five.

Section 6. All acts or parts of acts inconsistent herewith are hereby repealed.

Approved the eighth day of June, A.D. 1907.

Edwin S. Stuart.

PENNSYLVANIA MUTUAL LIFE INS. CO. _vs._ PHILADELPHIA

Pa. Supreme Court. April 15, 1913.

Bill in equity for an injunction to restrain the city of Philadelphia from appropriating certain land under the provisions of the Act of June 8, 1907 (text is given on page 272), and that the ordinance of Jan. 16, 1913, be declared unconstitutional.

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.”

CONSTITUTION OF MASSACHUSETTS. Article 10, Part 1

Amended, Nov., 1911

The legislature may by special acts for the purpose of laying out, widening or relocating highways or streets, authorize the taking in fee by the commonwealth, or by a county, city or town, of more land and property than are needed for the actual construction of such highway or street: _provided, however_, that the land and property authorized to be taken are specified in the act and are no more in extent than would be sufficient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appropriated for such highway or street as is needed therefor, may authorize the sale of the remainder for value with or without suitable restrictions.

PROPOSED AMENDMENT TO CONSTITUTION OF NEW YORK. Article I, Section 6

Defeated, 1911

“When private property shall be 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 public use.”[166]

AMENDMENT TO CONSTITUTION OF WISCONSIN, Article XI

Adopted Nov. 4, 1912

Section 3a. The state or any of its cities may acquire by gift, purchase or condemnation lands for establishing, laying out, widening, enlarging, extending, and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reservations in and about and along and leading to any or all of the same; and after the establishment, lay-out, and completion of such improvements, may convey any such real estate thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public works and improvements, and their environs, and to preserve the view, appearance, light, air, and usefulness of such public works.

AMENDMENT TO CONSTITUTION OF OHIO, Article XVIII

Adopted 1912

Section 10. A municipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made. Bonds may be issued to supply the funds in whole or in part to pay for the excess property so appropriated or otherwise acquired, but said bonds shall be a lien only against the property so acquired for the improvement and excess, and they shall not be a liability of the municipality nor be included in any limitation of the bonded indebtedness of such municipality prescribed by law.

IV. LEGISLATION CREATING PLANNING AGENCIES

A. BOARDS OF SURVEY

ACTS OF MASSACHUSETTS, 1907, Chap. 191

AN ACT to authorize the Establishment of Boards of Survey in Towns.

Section 1. The selectmen of any town which accepts the provisions of this act shall constitute a board of survey for that town.

Section 2. Any person or corporation desiring to lay out, locate or construct any street or way in any town which accepts the provisions of this act, after the date of such acceptance, shall, before the beginning of such construction, submit to said board of survey suitable plans of such street or way, to be prepared in accordance with such rules and regulations as the board may prescribe. Upon the receipt of such plans, with a petition for their approval, the board shall give a public hearing thereon, after giving notice of such hearing by publication once a week for two successive weeks in a newspaper published in the town, the last publication to be at least two days before the hearing; and after such hearing the board may alter such plans and may determine where such street or way shall be located, and the width and grades thereof, and shall so designate on said plans. The plans shall then be approved and signed by the board and filed in the office of the clerk of the town, who shall attest thereon the date of the filing.

Section 3. The board of survey shall from time to time cause to be made under its direction plans of such territory or sections of land in any town which accepts the provisions of this act, as the board may deem advisable, showing thereon the location of such street or ways, whether already laid out or not, as the board shall be of opinion that the present or future interests of the public require or will require in such territory, showing clearly the direction, width and grades of each street or way; and the board may employ such assistants and incur such expenses in regard to said plans as it may deem necessary, not exceeding the amount of money appropriated by the town for the purpose. Before making any such plan the board shall give a public hearing as to the location, direction, width and grades of streets or ways in the territory to be shown on the plan, after giving notice of such hearing by publication once a week for two successive weeks in a newspaper published in the town, the last publication to be at least two weeks before the hearing, and shall, after making any such plan, give a like notice of hearing, and a hearing thereon, and shall keep the plan open to public inspection for one month after the first publication of notice of such hearing. After such hearing and after the alterations deemed necessary by the board have been made in such plan, the plan shall be marked as made under the provisions of this act, shall be signed by the board, and shall then be filed in the office of the clerk of said town, who shall attest thereon the date of such filing.

Section 5. If any building shall hereafter be placed or erected in any town which accepts the provisions of this act within the boundaries of any street or way shown on any plan filed with the town clerk as herein provided, or on land adjacent to any such street or way the grade of which at the time of placing or erecting such building is other than the grade shown on said plan, or on land adjacent to any street or way the plan and profile of which have not been approved by said board of survey, no damages caused to any building so placed or erected, by the construction of such street or way as shown on said plan, or caused to any building so placed or erected, or to the land upon which such building is placed or erected, by the subsequent change of grade of any street or way the plan of which has not been approved by said board of survey, shall be recovered by or paid to the owner of the whole or any part of the estate of which the land upon which said building so placed or erected formed a part at the date of the first publication of notice of hearing as aforesaid.

B. PLANNING COMMISSIONS

ACTS OF MASSACHUSETTS, 1913. Chap. 494

AN ACT to provide for the establishment of local planning boards by cities and towns.

SECTION 1. Every city of the commonwealth, and every town having a population of more than ten thousand at the last preceding national or state census, is hereby authorized and directed to create a board to be known as the planning board, whose duty it shall be to make careful studies of the resources, possibilities and needs of the city or town, particularly with respect to conditions which may be injurious to the public health or otherwise injurious in and about rented dwellings, and to make plans for the development of the municipality with special reference to the proper housing of its people. In cities, the said board shall be appointed by the mayor, subject to confirmation by the council, and in cities under a commission form of government, so called, the members of the board shall be appointed by the governing body of the city. In towns, the members of the board shall be elected by the voters at the annual town meeting.

SECTION 2. Every planning board established hereunder shall make a report annually to the city council or governing body in cities and to the annual town meeting in towns, giving information regarding the condition of the city or town and any plans or proposals for the development of the city or town and estimates of the cost thereof; and it shall be the duty of every such local planning board to file a copy of all reports made by it with the homestead commission.

SECTION 3. The homestead commission, created by chapter six hundred and seven of the acts of the year nineteen hundred and eleven, is hereby directed to call the attention of the mayor and city governments in cities and the selectmen in each town having a population of more than ten thousand at the last preceding national or state census to the provisions of this act in such form as may seem proper; and said commission is furthermore authorized and directed to furnish information and suggestions from time to time to city governments and to the selectmen of towns and to local planning boards, when the same shall have been created, such as may, in its judgment, tend to promote the purposes of this act and of those for which the said commission was established.

SECTION 4. The city council or other governing body in cities is authorized to make suitable ordinances, and towns are authorized to make suitable by-laws, for carrying out the purposes of this act, and they may appropriate money therefor.

SECTION 5. This act shall take effect upon its passage. _Approved April 16, 1913._

LAWS OF NEW YORK, 1913. Chap. 699

AN ACT to amend the general municipal law by adding thereto a provision authorizing cities and incorporated villages to appoint planning commissions, and to appropriate money for the same.

_The People of the State of New York, represented in Senate and Assembly, do enact as follows_:

SECTION 1. The general municipal law is hereby amended by adding thereto a new article to be numbered twelve-a, to be entitled city and village planning commissions, and to read as follows:

ARTICLE 12-a

CITY AND VILLAGE PLANNING COMMISSIONS

Section 234. CREATION, APPOINTMENT AND QUALIFICATIONS. 235. OFFICERS, EXPENSES AND ASSISTANCE. 236. GENERAL POWERS. 237. MAPS AND RECOMMENDATIONS. 238. PRIVATE STREETS. 239. RULES. 239-a. CONSTRUCTION OF ARTICLE.

Section 234. CREATION, APPOINTMENT AND QUALIFICATIONS. Each city and incorporated village is hereby authorized and empowered to create a commission to be known as the city or village planning commission. Such commission shall be so created in incorporated villages by resolution of the trustees, in cities by ordinance of the common council, except that in cities of the first class, having more than a million inhabitants, it shall be by resolution of the board of estimate and apportionment or other similar local authority. In cities of the first class such commission shall consist of not more than eleven, in cities of the second class of not more than nine, in cities of the third class and incorporated villages of not more than seven members. Such ordinance or resolution shall specify the public officer or body of said municipality, that shall appoint such commissioners, and shall provide that the appointment of as nearly as possible one third of them shall be for a term of one year, one third for a term of two years, and one third for a term of three years; and that at the expiration of such terms, the terms of office of their successors shall be three years; so that the term of office of one third of such commissioners, as nearly as possible, shall expire each year. All appointments to fill vacancies shall be for the unexpired term. Not more than one third of the members of said commission shall hold any other public office in said city or village.

Section 235. OFFICERS, EXPENSES AND ASSISTANCE. The commission shall elect annually a chairman from its own members. It shall have the power and authority to employ experts, clerks, and a secretary, and to pay for their services and such other expenses as may be necessary and proper, not exceeding, in all, the annual appropriation that may be made by said city or village for said commission. The body creating the commission shall by ordinance or resolution provide what compensation if any, each of such commissioners shall receive for his services as such commissioner. Each city and incorporated village is hereby authorized and empowered to make such appropriation as it may see fit for such expenses and compensation, such appropriations to be made by those officers or bodies in such city or village having charge of the appropriation of the public funds.

Section 236. GENERAL POWERS. The body creating such planning commission may, at any time, by ordinance or resolution, provide that the following matters, or any one or more of them, shall be referred for report thereon, to such commission by the board, commission, commissioner or other public officer or officers of said city or village which is the final authority thereon before final action thereon by such authority: the adoption of any map or plan of said city or incorporated village, or part thereof, including drainage and sewer or water system plans or maps, and plans or maps for any public water front, or marginal street, or public structure upon, in or in connection with such front or street, or for any dredging, filling or fixing of lines with relation to said front; any change of any such maps or plans; the location of any public structure upon, in or in connection with, or fixing lines with relation to said front; the location of any public building, bridge, statue or monument, highway, park, parkway, square, playground or recreation ground, or public open place of said city or village. In default of any such ordinance or resolution all of said matters shall be so referred to said planning commission.

The body creating such planning commission may, at any time, by ordinance or resolution, fix the time within which such planning commission shall report upon any matter or class of matters to be referred to it, with or without the further provision that in default of report within the time so fixed, the planning commission shall forfeit the right further to suspend action, as aforesaid with regard to the particular matter upon which it has so defaulted. In default of any such ordinance or resolution, no such action shall be taken until such report is so received, and no adoption, change, fixing or location as aforesaid by said final authority, prior thereto, shall be valid. No ordinance or resolution shall deprive said planning commission of its right or relieve it of its duty, to report, at such time as it deems proper, upon any matter at any time referred to it.

This section shall not be construed as intended to limit or impair the power of any art commission, park commission or commissioner, now or hereafter existing by virtue of any provision of law, to refuse consent to the acceptance by any municipality of the gift of any work of art to said municipality, without reference of the matter, by reason of its proposed location or otherwise, to said planning commission. Nor shall this section be construed as intended to limit or impair any other power of any such art commission or affect the same, except in so far as it provides for reference or report, or both, on any matter before final action thereon by said art commission.

Section 237. MAPS AND RECOMMENDATIONS. Such planning commission may cause to be made a map or maps of said city or village or any portion thereof, or of any land outside the limits of said city or village so near or so related thereto that in the opinion of said planning commission it should be so mapped. Such plans may show not only such matters as by law have been or may be referred to the planning commission, but also any and all matters and things with relation to the plan of said city or village which to said planning commission seem necessary and proper, including recommendations and changes suggested by it; and any report at any time made, may include any of the above. Such planning commission may obtain expert assistance in the making of any such maps or reports, or in the investigations necessary and proper with relation thereto.

Section 238. PRIVATE STREETS. The body creating such planning commission may at any time, by ordinance or resolution, provide that no plan, plot or description, showing the layout of any highway or street upon private property, or of building lots in connection with or in relation to such highway or street shall, within the limits of any municipality having a planning commission, as aforesaid, be received for record in the office of the clerk of the county where such real property is situated, until a copy of said plan, plot or description has been filed with said commission and it has certified, with relation thereto, its approval thereof. Such certificate shall be recorded as a part of the record of said original instrument containing said plan, plot, or description. No such street or highway which has not received the approval of the planning commission shall be accepted by said city or village until the matter has been referred to such commission under the provision of section two hundred and thirty-six of this article. But if any such street is plotted or laid out in accordance with the map of said municipality, adopted according to law, then it shall not be necessary to file such copy, or obtain or record such certificate.

Section 239. RULES. Such commission may make rules not contrary to law, to govern its action in carrying out the provisions of this article.

Section 239-a. CONSTRUCTION OF ARTICLE. This article shall be construed as the grant of additional power and authority to cities and incorporated villages, and not as intended to limit or impair any existing power or authority of any city or village.

Any city or incorporated village in order to appoint a planning commission under this article shall recite, in the ordinance or resolution so creating the commission, the fact that it is created under this article.

Section 2. This act shall take effect immediately.

STATE OF NEW YORK, } Office of the Secretary of State. } _ss_:

I have compared the preceding with the original law on file in this office, and do hereby certify that the same is a correct transcript therefrom and of the whole of the said original law.

MITCHELL MAY, _Secretary of State_.

LAWS OF PENNSYLVANIA, GENERAL ASSEMBLY. No. 406, of 1913

A SUPPLEMENT to an Act entitled, “An act providing for the incorporation and government of cities of the third class,” approved the twenty-third day of May, Anno Domini one thousand eight hundred eighty-nine, creating a City Planning Department, defining its jurisdiction, and extending the same so as to regulate the laying out and recording of plans of lots within the limits of the city, and for three miles beyond the city limits; and to regulate the making and use of certain public improvements until said plans are approved by said department and authorizing the exercise of the powers herein provided by a park or other municipal commission.

Section 1. Be it enacted, &c., That an additional executive department in the government of cities of the third class is hereby created, to be known as the Department of City Planning, which shall be in charge of a City Planning Commission, consisting of five persons, to be appointed by the mayor and councils. In the first instance, one member of said commission shall be appointed for one year, one member for two years, one member for three years, one member for four years, and one member for five years, and annually thereafter a member of said commission shall be appointed for a term of five years. An appointment to fill a casual vacancy shall be only for the unexpired portion of the term. All members of the said commission shall reside within the zone of jurisdiction of said commission, as hereinafter defined. They may make and alter rules and regulations for their own organization and procedure, consistent with the ordinances of the city and the laws of the Commonwealth. They shall serve without compensation, and make annually to the mayor and councils a report of their transactions. They may employ engineers and other persons, whose salaries and wages, and other necessary expenses of the commission, shall be provided for through proper appropriation by councils.

Section 2. The clerks of council shall, upon introduction, furnish to the City Planning Commission, for its consideration, a copy of all ordinances and bills, and all amendments thereto, relating to the location of any public building of the city; and to the location, extension, widening, narrowing, enlargement, ornamentation, and parking of any street, boulevard, parkway, park, playground, or other public ground; and to the relocation, vacation, curtailment, changes of use, or any other alteration of the city plan, with relation to any of the same; and to the location of any bridge, tunnel, and subway, or any surface, underground, or elevated railway. The said commission shall have the power to disapprove any of the said ordinances, bills, or amendments, which disapproval, however, must be communicated to councils, in writing, within ten days from the introduction of said ordinances; but such disapproval shall not operate as a veto.

Section 3. The City Planning Commission may make or cause to be made, and lay before councils, and at its discretion cause to be published, maps of the city or any portion thereof, including territory extending three miles beyond the city limits, showing the streets, and highways and other natural and artificial features, and also locations proposed by it for any new public buildings, civic centre, street, parkway, park, playground, or any other public ground or public improvement, or any widening, extension, or relocation of the same, or any change in the city plan by it deemed advisable; and it may make recommendations to councils, from time to time, concerning any such matters and things aforesaid, for action by councils thereto; and, in so doing, have regard for the present conditions and future needs and growth of the city, and the distribution and relative location of all the principal and other streets and railways, waterways, and all other means of public travel and business communications, as well as the distribution and relative location of all public buildings, public grounds, and open spaces devoted to public use.

Section 4. The City Planning Commission may make recommendations to any public authorities, or any corporations or individuals in said cities, with reference to the location of any buildings, structures, or works to be erected or constructed by them.

Section 5. All plans, plots, or re-plots of lands laid out in building lots, and the streets, alleys, or other portions of the same intended to be dedicated to public use, or for the use of purchasers or owners of lots fronting thereon or adjacent thereto, and located within the city limits, or for a distance of three miles outside thereof, shall be submitted to the City Planning Commission and approved by it before it shall be recorded. And it shall be unlawful to receive or record such plan in any public office unless the same shall bear thereon, by endorsement or otherwise, the approval of the City Planning Commission. The disapproval of any such plan by the City Planning Commission shall be deemed a refusal of the proposed dedication shown thereon. The approval of the commission shall be deemed an acceptance of the proposed dedication; but shall not impose any duty upon the city concerning the maintenance or improvement of any such dedicated parts, until the proper authorities of the city shall have made actual appropriation of the same by entry, use, or improvement. No sewer, water, or gas-main, or pipes, or other improvement, shall be voted or made within the area under the jurisdiction of said commission, for the use of any such purchasers or owners; nor shall any permit for connection with or other use of any such improvement existing, or for any other reason made, be given to any such purchasers or owners until such plan is so approved. Where the jurisdictional limit of three miles outside of the city limits, as provided in this section, may conflict with the zone of similar character connected with another city of the third class, the jurisdiction of said commission shall extend only to the point equidistant between the city limits and the limits of said municipality.

Section 6. It shall be proper for said cities to provide, by ordinance, for the exercise of all rights and powers herein conferred upon the City Planning Commission, by a park commission, or kindred municipal bureau or commission, authorized under existing laws. And no person holding office under the government of any of said cities, except the mayor, members of councils, or commissioners, shall be ineligible to serve as a member of a City Planning Commission.

Section 7. All acts and parts of acts inconsistent with this act are repealed.

APPROVED—The 16th day of July, A. D. 1913.

JOHN K. TENER.

The foregoing is a true and correct copy of the Act of the General Assembly, No. 406.

ROBERT MCAFEE, Secretary of the Commonwealth.

LAWS OF NEW JERSEY, 1913. Chap. 72

AN ACT to enable cities of the first class in this State to provide for a city plan commission and provide funds for the same and defining the duties thereof.

BE IT ENACTED _by the Senate and General Assembly of the State of New Jersey_:

1. In cities of the first class it shall be lawful for the mayor to appoint a commission to be known as the “City Plan Commission,” to consist of not more than nine citizens of such city, and the terms of office of all of such commissioners shall begin upon the first day of January next succeeding the date of their appointment in such city.

Whenever commissioners shall be appointed under this act, the terms of such commissioners shall be divided into classes of one, two and three years, and the mayor shall designate which of such commissioners shall hold such respective terms under the first appointment, and shall divide the said commissioners, as nearly as may be, into such classes, and said commissioners first appointed as aforesaid shall hold their terms for one, two and three years respectively.

All subsequent appointments shall be for the term of three years, and in case any vacancy arises the appointment to fill the same shall be for the unexpired term.

Any city plan commission now existing in any such city shall be continued, but with the powers and duties herein provided, until the appointment of new commissioners, under the provisions of this act.

2. Such commissions shall serve without pay, and it shall be the duty of such commission to prepare, from time to time, plans for the systematic and further development and betterment of such city. It shall have the power and authority to employ experts, clerks and a secretary, and to pay for their services, and to pay for such other expenses as such commission may lawfully incur under the powers hereby granted, including the necessary disbursements incurred by its members in the performance of their duties as members of said commission; _provided, however_, that the total amount so expended in any one year shall not exceed the appropriation for such year as hereinafter provided.

The said city plan commission may consider and investigate any subject matter tending to the development and betterment of such city, and make such recommendations as it may deem advisable concerning the adoption thereof to any department of the municipal government, and for any purpose make, or cause to be made, surveys, plans or maps.

3. All questions concerning the location and architectural design of any work of art, statue or other memorial within such city shall be referred to the city plan commission for its consideration and report before final action is taken thereon.

All plats or replats of any lands within the limits of such city shall be submitted to the city plan commission for its recommendation before the same are approved.

4. It shall be lawful for the board or body having charge of the finances of any city of the first class as aforesaid, to appropriate any amount not exceeding twenty-five thousand (25,000) dollars any year that such commission may remain in existence, for the expenses of such city plan commission, and the moneys required for the expenses of said commission shall be raised by annual tax upon real and personal property as other taxes are raised in and for such city; _provided, however_, that for the fiscal year in which this act becomes effective, such moneys may be raised by said board or body having charge of the finances of such city, by appropriating for that purpose any moneys in the treasury of such city not otherwise appropriated, or by issuing and selling temporary loan bonds or certificates of indebtedness; _provided_, that such bonds or certificates shall be sold at public or private sale, after due advertisement, at not less than par; which bonds shall bear interest at not more than five per centum per annum, and the payment thereof, with interest, shall be provided for in the next tax levy.

5. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.

6. This act shall take effect immediately. Approved March 12, 1913.

SPECIAL ACTS OF CONNECTICUT, 1907. No. 61

Section 1. That there shall be in the city of Hartford a commission on the city plan, which shall consist of the mayor, who shall be its presiding officer, the president of the board of street commissioners, the president of the board of park commissioners, the city engineer, two citizens, neither of whom shall hold any other office in said city government, one member of the board of aldermen, and one member of the common council board, to be appointed as hereinafter provided.

Section 2. The necessary expenses of said commission shall be paid by the city, but no member thereof shall be paid for his services as such member.

Section 3. Terms of commissioners....

Section 4. All questions concerning the location of any public building, esplanade, boulevard, parkway, street, highway, square, or park shall be referred to said commission by the court of common council for its consideration and report before final action is taken on such location.

Section 5. The court of common council may refer to said commission the construction or carrying out of any public work not expressly within the province of other boards or commissions of said city, and may delegate to said commission all powers which the said council deems necessary to complete such work in all details.

Section 6. Said commission may make or cause to be made a map or maps of said city, or any portion thereof, showing locations proposed by it for any new public building, esplanade, boulevard, parkway, or street, and grades thereof, any street, building, and veranda lines and grades thereon, or for any new square or park, or any changes by it deemed advisable in the present location of any public building, street, grades and lines, square or park, and may employ expert advice in the making of such map or maps.

Section 7. Said City of Hartford, acting through said commission or otherwise, shall have power to appropriate, enter upon, and hold in fee real estate within its corporate limits for establishing esplanades, boulevards, parkways, park grounds, streets, highways, squares, sites for public buildings, and reservations in and about and along and leading to any or all of the same; and, after the establishment, lay-out, and completion of such improvements, may convey any real estate, thus acquired and not necessary for such improvements, with or without reservations, concerning the future use and occupation of such real estate so as to protect such public works and improvements and their environs, and to preserve the view, appearance, light, air, and usefulness of such public works.

ACTS OF MARYLAND, 1910. Chap. 144

AN ACT to add a new section relating to the creation of a Commission on City Plan to Article 4, entitled “City of Baltimore,” of the Code of Public Local Laws of Maryland, to come in immediately after Section 200, and to be known as Section 200a.

Section 1. _Be it enacted by the General Assembly of Maryland_, That a new section be and the same is hereby added to Article 4, entitled “City of Baltimore,” of the Code of Public Local Laws of Maryland, to come in immediately after Section 200 and to be known as Section 200a, and to read as follows:

200a. There shall be a Commission on City Plan, to consist of the Mayor of the City of Baltimore and eight other members who shall be appointed by the Mayor in the manner prescribed in Section twenty-five of this Article, who shall hold their offices as in said section provided, and shall serve without pay; one of the said commissioners shall be president of said commission, and shall be so designated by the Mayor; the said commission may elect a secretary, who shall be paid such salary as may be provided for by ordinance and who shall perform such duties as may be from time to time prescribed by said commission. The said commission shall investigate all plans proposed for the construction or extension of public highways in the City of Baltimore and the establishment of a civic centre or other public improvements in connection therewith, and shall report the results of such investigations from time to time to the Mayor and City Council, and shall perform such other duties and exercise such other powers as may be delegated to it or as may be prescribed by ordinances not inconsistent with this Article.

CHARTER OF CITY OF CLEVELAND

Adopted July 1, 1913

Section 77. City Plan Commission. There shall be a city plan commission to be appointed by the mayor with power to control, in the manner provided by ordinance, the design and location of works of art which are, or may become, the property of the city; the plan, design and location of public buildings, harbors, bridges, viaducts, street fixtures, and other structures and appurtenances; the removal, relocation and alteration of any such works belonging to the city; the location, extension and platting of streets, parks and other public places, and of new areas; and the preparation of plans for the future physical development and improvement of the city.

LAWS OF PENNSYLVANIA. GENERAL ASSEMBLY. No. 226, of 1913

AN ACT to create Suburban Metropolitan Districts of the areas within twenty-five miles of the limits of cities of the first class; to provide for the creation of a Department of Suburban Metropolitan Planning and the appointment of Suburban Metropolitan Planning Commissions for such districts; to prescribe their powers and duties; and to provide for assessment upon the cities, boroughs and townships within the limits thereof.

Whereas, The establishment of Suburban Metropolitan Planning Commissions having jurisdiction over territory adjacent to cities of the first class is desirable, in order to provide for its proper development by the coöperation of the various local governmental units in matters pertaining to their common welfare; and

Whereas, It is desirable, that there should be co-ordination of effort with Urban Metropolitan Planning Commissions, relating to cities of the first class themselves, wherever the same may exist:—

Section 1. Be it enacted, &c., That in order to secure coördinated, comprehensive plans of highways and roads, parks and parkways, and all other means of intercommunication, water-supply, sewerage and sewage disposal, collection and disposal of garbage, housing, sanitation and health playgrounds, civic centers, and other public improvements, as hereinafter provided for, the districts surrounding and within twenty-five miles of the limits of cities of the first class, whether in one or more counties, and in order to prevent waste by unnecessary duplication, the areas included within twenty-five miles of the limits of cities of the first class shall be denominated the Suburban Metropolitan Districts of cities of the first class of Pennsylvania. When any city, borough, or township is partly within and partly without the twenty-five mile limit, the whole of such city, borough, or township shall be regarded as within the Suburban Metropolitan District.

Section 2. There shall be an executive department created for every Suburban Metropolitan District, to be known as the Department of Suburban Metropolitan Planning, which shall be in charge of a Suburban Metropolitan Planning Commission.

Section 3. The Suburban Metropolitan Planning Commission shall be appointed by the Governor of the State of Pennsylvania, and shall consist of fifteen members, who may or may not hold other public office, whether for profit or otherwise, of whom twelve shall be residents of the district involved, and three shall be residents of the said city of the first class, five members to be appointed to serve for one year, five for two years, five for three years; then, thereafter, each appointment to be for three years.

An appointment to fill a casual vacancy shall be for the unexpired portion of the term. Nine shall constitute a quorum.

The Suburban Metropolitan Planning Commission shall make and alter rules and regulations for its own organization and procedure, consistent with the laws of the Commonwealth. From its own members it shall choose a chairman and vice-chairman. Each member shall serve without compensation. On or before January tenth of each and every year, the Commission shall make to the mayor of each city, to councils of each borough, to the commissioners of each first class township, and to the supervisors of each second class township, within the Suburban Metropolitan District, to the mayor of the said city of the first class, and to the Governor of the State of Pennsylvania, a report of its transactions and recommendations. The Commission may employ a secretary, engineers, and other experts and persons, whose salaries and wages, as well as all the other necessary expenses of the Commission and members thereof, shall be provided for as hereinafter set forth.

Section 4. The Suburban Metropolitan Planning Commission shall make, or cause to be made, and laid before the respective governmental authorities of the district, and, in its discretion, caused to be published, a map or maps of the entire district, or any portion or portions thereof, showing any or all systems of transportation, highways and roads, parks, parkways, water-supply, sewerage and sewage disposal, collection and disposal of garbage, housing, sanitation, playgrounds and civic centers, or of other natural physical features of the district; and it shall prepare plans for any new or enlarged facilities for intercommunication, parks, parkways, water-supply systems, sewers, sewage disposal, garbage disposal, land plottings and housing arrangements, playgrounds and civic centers, or any other public improvement that will affect the character of the district as a whole, or more than one political unit within the district, or any widening, extension, or relocation of the same, or any change in the existing township or borough or city plans, by it deemed advisable. And it shall make recommendations to the respective governmental authorities, from time to time, concerning any such matters or things aforesaid, for action by the respective legislative, administrative, or governmental bodies thereon; and in so doing have regard for the present conditions and future needs and growth of the district, and the distribution and relative location of all the principal and other streets, and railways, waterways, and all other means of public travel and business communications, as well as the distribution and relative location of all public buildings, public grounds, and open spaces devoted to public use, and the planning, subdivision and laying out for urban uses of private grounds brought into the market from time to time.

Section 5. Any city, borough, or township, within any Suburban Metropolitan District, may request the Suburban Metropolitan Planning Commission of that district to prepare plans concerning any of the subjects set forth in section four of this act; whereupon it shall be the duty of the Commission to prepare such plans with dispatch.

Section 6. The Suburban Metropolitan Planning Commission may make recommendations to any public authorities, or any corporation or individual in said districts, with reference to the location of any buildings and structures to be constructed by them.

Section 7. The plans so made and laid before the respective governmental authorities by the Suburban Metropolitan District Planning Commission, according to sections four, five and six, shall be considered by such respective authorities, and followed by them in so far as shall be determined by each authority:

Provided however, That the provisions of this act shall not abridge or in any way affect the provisions of an act, entitled “An act creating a Department of Health, and defining its powers and duties,” approved the twenty-seventh day of April, Anno Domini, one thousand nine hundred and five; or the provisions of an act, entitled “An act to preserve the purity of the waters of the State, for the protection of the public health,” approved the twenty-second day of April, one thousand nine hundred and five.

Section 8. On or before January tenth of each and every year, the Commission shall prepare an estimate of its expenses for the ensuing year, setting forth with as much detail as is practicable the items of which such estimate is composed; and shall cause the amount of its expenses so estimated, after deducting the cash on hand and the unpaid assessments, to be assessed against the cities, boroughs, and townships within the district, in proportion to their respective tax duplicates. The itemized estimate of expenses and a statement of the rate of assessment shall be spread upon the minutes of the Commission, which shall be kept open at all times for public inspection. Each and every assessment, when certified by the chairman and secretary of the Commission, shall constitute a charge on the treasury of the respective city, borough, and township, and its immediate payment shall be at once provided for. The Commission shall have power to secure payment of the assessments by suits of mandamus, or otherwise: Provided, That the rate of assessment shall not exceed one-tenth of one mill.

APPROVED—The 23d day of May, A. D. 1913.

JOHN K. TENER.

The following is a true and correct copy of the Act of the General Assembly No. 226.

ROBERT MCAFEE, Secretary of the Commonwealth.

LAWS OF PENNSYLVANIA. GENERAL ASSEMBLY No. 456, of 1913

AN ACT to amend an act, entitled “An act creating an art jury for cities of the first class, and prescribing its powers and duties,” approved the twenty-fifth day of May, Anno Domini one thousand nine hundred and seven.

Section 1. Be it enacted, &c., That section three of an act, entitled “An act creating an art jury for cities of the first class, and prescribing its powers and duties,” approved the twenty-fifth day of May, one thousand nine hundred and seven, which reads as follows:—

“Section 3. The members of the jury shall serve without compensation; and from their own number shall elect a president and _secretary_, to serve for one year, and until their successors are elected. The jury shall have power to adopt its own rules of procedure and to prescribe regulations for the submission to it of all matters within its jurisdiction. Five members shall constitute a quorum. The councils of said city shall, by ordinance, provide for the necessary expenses of the jury, including the salaries of _such clerk or clerks as may be required and appointed by the mayor of said cities_,” is hereby amended so that it shall read:—

Section 3. The members of the jury shall serve without compensation; and from their own number shall elect a president and _vice-president_, to serve for one year, and until their successors are elected. The jury shall have power to adopt its own rules of procedure and to prescribe regulations for the submission to it of all matters within its jurisdiction. Five members shall constitute a quorum. _The jury shall have power to employ a secretary, and such clerks, stenographers and other assistants as it may require. All employees of the jury shall be exempt from the provisions of the act to regulate and improve the civil service of the cities of the first class, approved March fifth, one thousand nine hundred and six._ The councils of said city shall, by ordinance, provide for the necessary expense of the jury, including the salaries of its employees.

Section 2. That said act is hereby further amended by adding the following:—

Section 7. No construction or erection, in a city of the first class, of any building, bridge or its approaches, arch, gate, fence, or other structure or fixture, which is to be paid for, either wholly or in part, by appropriation from the city treasury, or other public funds, or for which the city, or any other public authority, is to furnish a site, shall be begun, unless the design and proposed location thereof shall have been submitted to the jury, at least sixty days before the final approval thereof, by the officer or other person having authority to contract therefor. The approval of the jury shall also be required in respect to all structures or fixtures belonging to any person or corporation, which shall be erected upon, or extend over, any highway, stream, lake, square, park or other public place, within the city, except as provided in section six of this act. In deeds for land, made by any city of the first class, restrictions may be imposed requiring that the design and location of structures to be altered or erected thereon shall be first approved by the art jury of such city. Nothing requiring the approval of the jury shall be erected, or changed in design or location, without its approval. If the jury fails to act upon any matter submitted to it within sixty days after such submission its approval of the matter submitted shall be presumed.

APPROVED—The 24th day of July, A. D. 1913.

JOHN K. TENER.

The foregoing is a true and correct copy of the Act of the General Assembly, No. 456.

ROBERT MCAFEE, Secretary of the Commonwealth.

FOOTNOTES:

[166] See page 248 of this Appendix for the amendment which passed in 1913.

APPENDIX B

EXTRACTS FROM REPORT ON ENGLISH AND CONTINENTAL SYSTEMS OF TAKING LAND FOR PUBLIC PURPOSES

FROM MASSACHUSETTS DOCUMENTS, 1904. House No. 288 of 1904 and House No. 1096 of 1904

THE REPORT OF COMMITTEE

It has clearly appeared, from the evidence submitted to us, that the present system of laying out new streets or widening or altering existing ones, under which only the land actually required for the street is taken, is, especially in those parts of cities which are covered with existing buildings, productive of serious public disadvantages; and a brief consideration of the matter is sufficient to show that this difficulty is inherent in the system itself, and must persist unless some modification of that system can be devised.

The land abutting on any existing street is divided and arranged in lots, which, as well as the circumstances have admitted, are adapted to the street in its present condition, and the buildings thereon are constructed in conformity therewith. Any widening of the street not only destroys the existing buildings, but, by reducing the size of the abutting lots, leaves the residues or remnants of many of them of such shape and size as to be entirely unsuited for the erection of proper buildings, unless and until these remnants have been united with the adjoining properties, generally with those in the rear, which are thus enabled to extend out to the new street lines.

The same condition is found, and frequently even to a greater extent, when a new thoroughfare is laid out through existing blocks covered with buildings.

Hence, when an existing street is widened or a new thoroughfare is laid out under the present system, the lots on one or both sides of the new or widened street are left in such condition that, until a rearrangement can be made, no suitable buildings can be erected thereon, and the public benefit to be derived from the improvement is in great measure lost.

The street may be valuable as a thoroughfare or as one for through traffic, but not for either business or residence purposes; and striking instances of this have been presented to the committee in connection with street improvements in the city of Boston.

Not only is such a situation a great disadvantage to the city, in hindering and sometimes preventing its proper development, but it will easily be seen that this state of affairs renders the collection of betterment assessments extremely difficult, since the benefit to the surrounding property, which should accrue from the improvement, is actually not received until these residues or remnants have been united with the adjoining lots,—a process which, under the present system, may take years.

It often happens that the owners of these remnants, desirous of deriving some income therefrom in the meanwhile, erect thereon temporary structures, unsuited for proper habitation or occupancy; and such structures are too frequently made intentionally objectionable, both in appearance and in the character of their occupancy, for the purpose of compelling the purchase of such remnants at exorbitant prices; with the result that a new thoroughfare, which should be an ornament to the city, is frequently for a long period after its construction disfigured by unsightly and unwholesome structures, to the positive detriment of the public interests. These results, which seem inevitable under the present system, may operate to prevent the undertaking of much-needed street improvements.

* * * * *

Furthermore, it is believed that the taking of whole estates, instead of taking the greater part and leaving an undesirable remnant, would not materially increase the initial expense of the undertaking; inasmuch as a city which takes, under the present system, so much of an estate as to leave the remainder unsuited for building purposes, is often obliged to pay for the value of the part taken, and for the damages to the remaining part practically as much as it would be obliged to pay for the whole estate.

What has been said above indicates the public considerations which render a change in the existing system desirable.

There is also, however, another side to the question, viz., that of the private owner, the consideration of which appears to point to the same conclusion. It frequently happens that an owner, the greater part of whose estate is necessarily taken for a public work, would prefer not to be left with the remnant on his hands, and if an opportunity were offered, would voluntarily request the city to take the whole estate. Many people recognize that there is less opportunity for differences of opinion upon the question of the market value of a whole estate than over the more complicated question of the value of the portion which has been taken, and the damages to the remainder by reason of such taking; and hence a system under which the city could acquire the whole estate would be productive of greater ease in the settlement of damages, and less likelihood of litigation over the question involved therein.

This right of the private owner to require the taking of the whole estate, when the residue, after deducting what is actually needed for the public work, is unsuited for the erection of appropriate buildings or is reduced below a certain area, is almost universally recognized both in England and on the continent of Europe. It has also received recognition in this State, in chapter 159 in the Acts of 1867, relating to the widening of Oliver Street in the city of Boston, which act, after empowering the city to assess the cost of the improvement upon the abutting estates, provided that any owner, part of whose land was taken, might before the assessment elect to surrender his whole estate to the city, which should pay therefor its full value as it was before the improvement was made, and should have the right to resell the portion not required for the new street.

The constitutionality of this act was upheld in the case of Dorgan _vs._ Boston, 12 Allen, 223.

With regard to the acquirement by compulsory taking of land beyond the limits of a given public work, we find that two different systems have prevailed:—

1. The taking, in addition to the land actually required for the public work, of all the property within certain bounds in the neighborhood of the proposed work; the rearranging of the lot lines of the property so acquired; and the disposal of this property by sale or lease for the benefit of the city.

2. The taking, in addition to the land actually required for the public work, of such residues or remnants of lots only which, in consequence of the taking for the public work, will be left of such shape and size as to be unsuited for the erection of proper buildings; and also of such portions of the adjoining properties as it may, in consequence of the refusal of their owners to purchase these remnants, be necessary to acquire, in order to make proper building lots abutting on the proposed street.

In favor of the first system, it has been urged that, in consequence of the carrying out of the proposed public work, there will be an increase in value of the surrounding property, caused by no act of its owner, but entirely by the act of the public body, and at the public expense; that it is inequitable that such increase in value should not accrue to the public, to the expenditure of whose money it is solely due; that the method of acquiring the abutting property in the neighborhood is the best method of securing such benefit to the public; that it is far simpler and more equitable than any system for the collection of betterments; and that, if the owners of the abutting property are paid its full value as it was before the improvement took place, they have no cause to complain.

This is the system which, in substance, has been adopted for important street improvements in many cities of Great Britain, Belgium, Switzerland and Italy and has, we are informed, been on the whole successful in its operation, and is believed in certain cases to have materially reduced the cost of public improvements.

As against this system it is urged that the State ought not to dispossess the private owner of his property simply in order that the public work may be carried on at less cost, through resale of the property so acquired; that the expense of public works should be met by taxation, and not by the taking of private property for no other purpose than to benefit the public exchequer by its resale; that the power to take property for such purposes as is contemplated by the first system is practically a power to enter into a land speculation, which may result disastrously.

In the case of our cities, there is the further objection that the adopting of such a system might easily carry the initial cost of an undertaking beyond the debt limit of the municipality.

In support of the second system, it is urged that the ends of public necessity and convenience, for which private property may properly be taken, can all be accomplished by limiting the taking, in addition to the land actually required for the public work, to such remainders of lots as are by themselves unsuited for proper building purposes, and by uniting them to the adjoining properties, compulsorily, if necessary; and that the right to take private property should not be extended beyond these salutary limits.

Such is the system which, originally established for the city of Paris, has now been extended to many of the other important cities of France, and under which many of their great improvements have been carried out; and such a system should, it would seem, if fairly and judiciously applied, be ample to our needs.

In the draft of an act herewith submitted we have, in substance, adopted this plan, and believe that it will be time enough to consider adopting a more comprehensive scheme if the plan proposed shall, after a fair trial, be found insufficient to our needs.

It would appear that, in order to give such a system its full value and effect, its operation should be extended to parcels of land comprised within the limits of streets which are discontinued in consequence of the laying out of new streets, so that such parcels could be united to the land abutting thereon.

This has been found to be advisable in the practical application of the law in France; and in the plan for such a law, herewith submitted, we have attempted to make such additional provision.

* * * * *

With regard to the provisions as to taking the land of an adjoining owner who does not accept the city’s offer to sell to him the parcel which the city has acquired outside of the limits of the proposed public work, it should be added that in our opinion such takings would in practice be of quite rare occurrence. Such owners are usually desirous of acquiring parcels which give them access on new or widened highways, if this can be done at fair prices, but are unwilling to pay the exorbitant prices which are often asked for such parcels. As the very fact that a residue or remnant of a lot had under the proposed act been acquired by the city would show that it had been adjudged that the remnant was by itself unsuited for the erection of buildings, the only uses that could consistently be made of it would either be to leave it open, thus destroying the utility of much of the street frontage, or to unite it with the adjoining property; and, were the owner of the adjoining property to feel that the only possible courses open to the city were either to leave the lot vacant or to sell it to him, he probably would offer but a nominal sum for it.

The purpose of these provisions, therefore, is to enable the city to receive fair prices for these remnants, and to control the character of their development.

We have been urged to consider, and have considered, the desirability of insisting on certain architectural requirements, to ensure greater symmetry and harmony in the constructions which front on and frame our principal avenues. It has seemed to us that such requirements could not well be embodied in such an act as we have submitted, and were probably beyond the scope of our mandate. We have, however, provided that, in disposing of any land acquired outside of the lines of the new street, the city might impose restrictions thereon; and it is our expectation that in framing those restrictions due regard would be had to ensuring the architectural symmetry of the new street.

It would, in our opinion, often be of great benefit to the city to impose such restrictions for a limited term of years upon all property abutting on a new or widened street; and this might be done, whether any portions of such property were acquired by the city or not; in other words, even were the street to be laid out under the present highway acts. While it might not be desirable to attempt to embody the details of such restrictions in a general act, the power to impose such reasonable restrictions as should be found necessary to ensure the architectural symmetry of the new street might be conferred by a general act, containing provisions for the payment of the damages, if any, resulting from the exercise of such powers.

It should be noted that this question has been successfully dealt with in connection with the new streets of London, by requiring that the façade plans and elevations of the new buildings to be erected thereon should be submitted to the approval of the municipal authorities, which approval, however, is not to be “unreasonably withheld”; and providing for a decision on the plans by an umpire, viz., an architect selected by the president of the Royal Institute of Architects, in case the city and the private owners failed to agree.

The question of the constitutionality of the proposed enactment has of course presented itself, and deserves careful consideration. The committee is, however, of the opinion that it was not the intention of the Legislature, in passing the resolve under which the committee was appointed, that the committee should attempt to advise the Legislature on this important question of constitutional law. The supreme judicial court is made by the constitution (chapter III, article 2) the adviser of the Legislature on such questions, and either branch of the Legislature is given authority to require the opinion of the justices of that court thereon.

It seems, however, proper to direct the attention of the Legislature to the fact that a law which should authorize a municipality to take the whole of those lots, so much of which is actually required for the public work that the remainder will not be of such size or shape as to be suitable for the erection of proper or wholesome buildings, would not be open to such serious or grave constitutional objections as one which, purely for the purpose of effecting a saving in the cost of carrying out a given public work, should authorize a municipality to take private property to a much greater extent than is needed for the work, and, by sale of the surplus, to receive the benefit of the increase in value given to that surplus by the public work in question.

The taking of the whole of those estates the remnants of which would not be suited for the erection of proper buildings may well be deemed a taking for those public uses for which building regulations and those limiting the height of buildings on public areas have been upheld.

Furthermore, the supreme court of this State, in the case of the Copley Square restrictions (Attorney General _vs._ Williams, 174 Mass. 476, 478), has laid down the principle that “the uses which should be deemed public in reference to the right of the Legislature to compel an individual to part with his property for a compensation, and to authorize or direct taxation to pay for it, are being enlarged and extended with the progress of the people in education and refinement. Many things which a century ago were luxuries or were altogether unknown have now become necessaries.” And these principles are widely recognized today.

The union of such remnants or remainders to the adjoining properties, either by their sale to the owners of such properties or by the taking of so much of such properties as when added to such remainders will make lots which are suitable for the erection of proper or wholesome buildings, would seem to be essential, if the public ends for which such remainders are taken are to be accomplished; and the right to authorize such takings of adjoining properties would seem to follow, if the taking of the remnants is considered a taking for a public use.

There are doubtless cases in which the Legislature might authorize the taking of the whole of the land comprised within a certain area, and its subsequent resale. It seems to be clear that the right exists, whenever such a course is desirable in order to abate a nuisance or remedy conditions inimical to public health; and that the Legislature may authorize the municipality, after having abated the nuisance or remedied such conditions, to resell the whole or any part of the property as acquired. This power has been frequently exercised, the most notable instance perhaps having been chapter 308 of the Acts of 1867, relating to the Church Street district in Boston, the constitutionality of which enactment was upheld in the case of Dingley _vs._ Boston, 100 Mass. 554.

There may be other cases in which such extended takings would be upheld, but, for the purposes of the legislation which we have recommended, the consideration of such cases would not seem to be necessary.

MUNICIPAL REAL ESTATE OPERATIONS IN CONNECTION WITH STREET IMPROVEMENTS IN PARIS AND LONDON, House Doc. 288 (pp. 53-56)

The experience of Paris and London teaches that it is unwise for a city to attempt to recover a part of the cost of street improvements by taking more land than is required for the streets themselves, with a view to intercepting the increases in value which the improvements may give to the adjoining land. In this respect the experience of the provincial towns of England has not differed materially from that of London and Paris.

Experience teaches that, while the effect of street improvements upon land values often is uncertain, there is, upon the whole, an increase of values that would lessen materially the cost of street improvements, if cities could collect that increase by means of so-called “recoupment.” But thus far “failure of administration” has defeated the efforts of cities to collect the so-called unearned increment arising from street improvements.

That failure of administration has resulted from the persistent failure of public opinion to correct the practice of juries of giving awards “contrary to the facts and the law” to the persons whose lands are taken for public use; and from the persistent failure of the Legislature to correct the obvious shortcomings of the law. For this failure of public opinion and of the Legislature there are various reasons. In the first place, it has been entirely impossible to overcome the public sympathy with the private individual against whom the city was proceeding. That sympathy is based largely upon the notion, ineradicable from the mind of the average citizen, that the city, like the State, has large resources upon which it can draw, and which it can replenish without in any way affecting the citizen. This sympathy with the individual and this optimism as to the city’s resources acted with all the more freedom from check, since the laws which authorized the cities to go into real estate speculations for the purpose of recovering a part of the cost of street improvements were not enacted in response to any general or compelling conviction of the body of the citizens, that the cost of street improvements must be reduced. The average man takes no permanent interest in the question of the cost of public improvements; and laws of the kind here discussed are enacted only in consequence of the activity of a small body of citizens, who appreciate keenly the necessity of husbanding the city’s resources. When such laws, which have been enacted without the support of an intelligent and compelling public spirit, come to be administered by the average juror, the city’s interests inevitably are lost sight of, in the desire to do ample justice to the individual whose property the city takes by compulsory powers.

* * * * *

Turning next to the question whether the cities whose operations have been examined have been able to sell to the best advantage the lands acquired, the answer once more is in the negative. Baron Haussmann, summing up his vast experience with city activity and private activity in Paris in 1852 to 1869, said that private enterprise had innumerable ways of nursing and developing real estate that the city neither could invent nor imitate.

* * * * *

In conclusion, it may be added that in Paris there has been since 1876 an exceedingly intelligent minority which has held that the city should not itself execute any more street improvements, but should leave such operations to private enterprise, subsidizing the latter for that purpose.

In London, the Metropolitan Board of Works was succeeded in 1889 by the London County Council. The latter body in 1890 asked Parliament for permission to supplement the practice of “recoupment” by the so-called American practice of assessing a betterment tax upon property enhanced in value by public improvements. One may, perhaps, go farther, and say that the London County Council was ready to place its main reliance upon the practice of assessing a betterment tax, and to relegate to a subsidiary position the practice of recoupment. Be that as it may, the London County Council, from 1890 to 1898, declined to proceed with any large improvement schemes, because Parliament refused to give it power to employ the betterment system as extensively as it desired to employ it. In 1898, or 1899, Parliament yielded, and the London County Council proceeded with the Strand improvement scheme.

REPORT ON THE FRENCH SYSTEM FOR TAKING LAND BY RIGHT OF EMINENT DOMAIN. House Doc. 288, pp. 44-52

In order to appreciate the system which obtains in France for taking land by right of eminent domain, it should be understood at the outset that the initiative for the construction of public works is rarely taken by the local deliberative body, the municipal council, for instance, but almost always by the executive, or, as they would term it, the administration, the head of which is the chief of the State, with his various ministers, while the prefect in each department and the under prefects and other officers represent the lower ranks of the administrative hierarchy.

This fact explains why the preliminary procedure, which has for its object to determine with careful regard for private interests the exact limits of the land required to be taken, is, even when deliberative in character, considered a part of executive rather than of legislative functions.

* * * * *

Provisions for compulsory taking of land outside the limits of the proposed public work:—

By a decree of March 26, 1852, it was enacted that: “In any plan for taking land for widening, relocating or laying out streets in Paris, the administration may include the whole of each lot affected, whenever it shall consider that the residue will not be of such size or shape as to allow the erection of wholesome constructions. It may also include in the taking lots outside of the street lines, whenever it is necessary to acquire them in order to discontinue former public streets which have been deemed useless. The portions of lots which have been taken outside of street lines and which are not capable of receiving wholesome constructions shall be united to the adjoining properties either by agreement or by the taking of those properties.”

In order to include in the taking any portion of a lot outside of the street lines, it is necessary, whenever this is practicable, that it should be included in the plan submitted to the preliminary inquiry; and in all cases such proposed takings must be shown on the detailed plan submitted to the second inquiry above referred to, and if the owners opposed the taking, and since 1876, even in the absence of opposition, the decree which determines the limits of such takings is rendered, not by the prefect, as in the case of the property included in the street lines, but by the council of State.

The provisions of law for uniting these portions of lots acquired outside of the street lines to the adjoining properties contemplate a careful appraisal of such portion, to determine its value to the adjoining owner under all the circumstances of the case, the offering of it to such owner at the appraisal value; and if he fails to accept the offer within a week from its receipt, the administration may proceed to take his property for the purpose of uniting the remnant to it, and then reselling the whole.

The provisions of this decree of March, 1852, originally passed for Paris only, have since been applied to most of the important cities of France.

Attention should be called to the fact that under the provisions of the law of April 13, 1850, all the land within fixed limits may be taken whenever required in order to abate a nuisance, or in the interest of works for the improvement of the public health, and the surplus, after completion of the works, sold at public auction.

It is stated, however, that in comparison with the law of March, 1852, that of April 13, 1850, has been rarely applied.

The law of Sept. 16, 1807, contains provisions for the assessment of betterments, according to which private property which has received a marked increase in value from the opening of new streets or squares, the construction of quais and other public works, may be assessed a betterment to the amount of one-half of such increase in value; but this can only be done by an order of the head of the State, passed in State council.

The amount of the tax is determined by a special commission formed for the purpose.

The power to assess such tax seems rarely to have been employed; it is said that not more than twenty instances of its exercise can be found in all France from the passage of the law up to 1886; and, although formerly applied in some instances to cases of street improvements in cities, it seems for the last fifty years, or since the enactment of March, 1852, above referred to, to have been employed only in cases where the special benefit was of an exceptional character, as when arising from the construction of levees, dikes or a series of quais.

* * * * *

House Doc. No. 1096, Supplemental Report pp. 4-10

The effect of these provisions and of those of the French law, which place all administrative matters under the control of the administrative courts of which the Council of State is the highest, and remove them from the jurisdiction of the regular courts, is to make the Council of State practically the sole judge of the extent to which these powers should be exercised, and of the size of the remnants which may be taken, and hence the extent to which such takings may be made under the law is almost entirely dependent on the attitude of the Council of State.

There appears to be no question that at present, and indeed for many years past, substantially since the establishment of the present Republic, the attitude of the Council of State has been to limit as far as possible the application of the law which authorizes the taking of such remnants, and to permit any owner who desired to retain the ownership of the remnant of his estate to do so, provided it were in any way possible to erect on such remnant a building which would comply with the requirements of the building law regarding light and air.

This attitude appears to be taken through solicitude for the wishes of the individual owner, and to a theoretical assumption that, as takings by eminent domain are in derogation of common right, they should be restricted, as far as possible, and is doubtless due in large measure to the reaction from the former régime, when private and personal rights were subordinated to the wishes of the administrative government.

The contrast between the position now taken by the Council of State regarding these matters and that taken under the empire may be gathered from a comparison of the size of the remnants the taking of which was formerly authorized by the Council of State, and of those the taking of which it now refuses to authorize.

In 1896 and 1897 there was constructed that portion of the Rue Reaumur connecting the Place de la Bourse with the Boulevard Sebastopol, which lies between the Place de la Bourse and the Rue St. Denis. Although the actual taking of the land occurred in 1894-95, shortly before the construction, the decree which authorized the taking and determined its limits had been made thirty years before, viz., in August, 1864, under the second empire, and that decree authorized the taking of remnants as large, in some instances, as 5,000 square feet in area.

These remnants were resold for building lots, and in some cases the remnant, which had been taken as being too small to allow the erection of a wholesome building thereon, was divided into two lots, each of which was sold by itself for a building lot.

In contrast with this somewhat extralegal method of procedure, should be set the following example of the present application of the law.

The city of Paris has lately, in connection with the development of the land formerly occupied by the Trousseau Hospital, found it necessary to construct some new streets, the laying out of which left certain remnants of estates which the city desired authority to take.

In this case the Council of State refused to approve the taking of those remnants whose area exceeded 650 square feet, while it authorized the taking of those whose area was less than this.

These two instances may fairly be considered as typical of the difference between the former régime, under which the takings in connection with street improvements were often made without regard to the fact that the law only authorized the taking of those remnants which were unsuited for building purposes, and the present régime, where the application of that law is so limited as, in the opinion of some, to defeat in certain cases the purpose for which it was enacted, viz., to ensure that all the lots abutting on the new street should be suited to the erection of proper buildings.

It is important to note that in the case last mentioned (that of the Hospital Trousseau), the request of the city for authority to take those remnants which the Council of State declined to authorize it to take did not appear to have been made for the purpose of securing the profit from the resale of those remnants; nor was the request refused because it was thought to have been so prompted.

That purpose was neither avowed by the representatives of the city, nor would it be inferred from examination of the plan, nor were the members of the Council of State inclined to attribute it to the city or to its representatives.

The difference between the city and the Council of State was rather one of opinion as to the size of the remnant which should or should not be deemed suitable for building, the Council being inclined to place the limit of size lower than were the officials of the city; and it seemed probable that were an opportunity offered to the officials of the city to present their views on this matter before the Council of State, which is not done under the present practice, the standard desired by the city might be adopted.

However this may be, and it would seem that in certain cases at least the limit of the size of a remnant which an owner should be permitted to retain had been placed too low, there appears to be no doubt as to the general consensus of opinion today among those most conversant with such matters in Paris, whether members of the city administration or of the Council of State, that extended takings of land outside of the lines of proposed new streets solely for the purpose of securing for the city the profit from the resale of the land so acquired are neither proper nor desirable.

The increased initial expense involved in such takings was an important reason given for this opinion, and the uncertain length of time required for the disposal of the property another. The taking of remnants properly so called, that is, of such residues of lots as were by themselves unsuited for building purposes, was not considered as open either to these or to the other objections urged against the taking of land solely for the purpose of resale.

The increased expense caused by taking such remnants was, especially where the land had been built upon, but slight.

In any event the land taken for the street had to be paid for, and where part of a building was taken the city was invariably obliged to pay for the whole, the damages to the tenants were the same practically whether the whole estate or only a part was taken, and thus the sole difference in expense between taking the whole estate or leaving a remnant was the difference between the value of the remnant at the time of taking and the damages caused it by the taking for the street, which must be paid if the remnant was not taken, and this difference was not great.

Furthermore, such remnants were found to be readily salable, the adjoining owner almost always being desirous of securing the frontage they afforded on the new street and ready to purchase them at a fair price, which more than compensated for the increased cost of taking them; so that only in rare instances had it been necessary to have recourse to the power of taking the adjoining estate for the purpose of completing a remnant.

* * * * *

It seems clear that much of the effort which Paris has made to reduce the expense of street improvements by taking additional land in the hope of profiting by its resale has been due to the lack of a satisfactory betterment law, and now that the attitude of the Council of State is opposed to further takings simply for the purpose of resale the attention of the municipal authorities is more and more directed to securing a satisfactory method for the assessment and collection of betterments.

The present attitude of the Council of State as to permitting the taking of land outside the limits of the street simply for the purpose of profiting by its resale has had a marked effect on the proposals made to the city for the completion of the Boulevard Haussmann, to which reference is so often made.

Until the fact that the Council of State would no longer permit extended takings for the purpose of profiting by the resale of the land so acquired was generally understood, the proposals made to the city contemplated that in addition to the 88,888 square feet required for the street it should take abutting estates of 99,457 square feet in area, the whole at an expense of $10,000,000, for which the city would have become liable in the hope that it might recoup itself by the revenue to be derived from long leases of the surplus land and from its resale at the expiration of those leases. The city was either to advance the bulk of the money required for the new buildings to be erected on those lots or to permit them to be mortgaged for that purpose.

If the expected rents were realized during the period anticipated, the burden on the city would have been little or nothing, while if they were not, the city might have been obliged to bear the burden of the interest and sinking fund charges on the whole $10,000,000, and those on the mortgage also.

It being now recognized that such a taking will not be permitted, the latest proposition made to the city was to the effect that the owners of the most important of the abutting estates were prepared to give to the city 50,783 square feet of the land required for the street, considerably more than one-half, provided the city would build the street, pay the damages to their tenants and release them from any betterment assessment.

The expense to the city was thus reduced from $10,000,000 to about $4,000,000 (the tenants’ damages in each case being estimated at about $2,000,000), and though all expectation of profit except from increased receipts of taxes was abandoned, this material reduction rendered it much more possible for the city to undertake the work; and were an assessment of betterments to be made on those estates which did not contribute to the street the expense could be further reduced.

In what has been said above, the present and the past attitude of the authorities of Paris, and of the Council of State, toward takings of land outside the limits of proposed new streets solely for the purpose of securing the profit from the resale of such land has been considered; but it must not be inferred therefrom that the only purpose for which extended takings of land have been made in Paris in connection with street improvements has been that of securing the profit from the resale of the land taken.

There are many cases where such takings have been made in whole or in part for the purpose of improving the sanitary conditions in the area taken, and where the best method of securing such improvement was by the razing of every structure in the area to be improved and the rebuilding of that area according to modern requirements.

Only actual acquaintance with the conditions which obtain in some of the more ancient quarters of the cities of the Continent can give an adequate idea of how essential such improvement was and in many cases still is, and how impossible of attainment it is by any method short of the total destruction of all the buildings within such area.

The same holds true frequently of small groups of buildings on the line of or in the neighborhood of a projected street improvement.

Where such a case presents itself, the Council of State does not hesitate today to authorize the taking of all the land and buildings in the area to be improved or of the groups of buildings, the demolition of which is required for sanitary reasons, and of the land on which they stand. While in such cases whatever is realized from the sale of such land goes in reduction of the cost of the improvement, the taking of the land is not primarily made for the purpose of effecting that saving, though it would be natural for the authorities, wherever such a saving had been made, to lay stress upon the fact as justifying the method adopted.

In considering the extended takings which have been made in European cities it is important in each case to ascertain whether or not the considerations which prompted the taking of more land than was apparently required for the proposed new streets did not relate primarily to the remedying of unsanitary conditions, as the opportunity which their laws afford of combining in one taking lands required for street purposes and those taken to remedy conditions inimical to public health is often availed of, and in such cases the actual importance of the sanitary considerations does not always clearly appear on the record.

EXCESS TAKING IN BRUSSELS, House Doc. No. 1096, pp. 10-16

In Belgium since 1867 cities have been permitted to take land by zones, as it is termed, either for the purpose of improving sanitary conditions or of improving the appearance of the city, and some of the most notable instances of the exercise of this power are found in Brussels, to satisfy whose needs the law was originally passed.

No limit is fixed by the law for the extent of these zones, and the city is not restricted to taking land within a certain distance of the new highway, as is the case in the Swiss and Italian laws for instance, but may take whatever seems advisable in order to accomplish the purposes for which the taking is made; but, again, the city is not permitted to be the sole judge of how extensive a taking shall be made.

After the city authorities have adopted the plan, the matter is submitted to the Council of the Province, which makes a separate examination of the question by an independent commission, and after both the city and provincial authorities have approved the plan, a royal decree, generally rendered on the report of the Ministers of Public Works and of the Interior, is necessary to authorize the taking.

It is evident that in the Belgian law two matters are united which with us have usually been kept entirely distinct, viz., takings in the interest of public health and takings for public improvement, in the sense of improving the appearance of the city; and a brief statement of the conditions which obtained in Brussels forty years ago will show how this naturally came to pass. (See pp. 122 ff. of this volume.)

* * * * *

So far from Brussels having concluded by reason of her trying experience that the taking of land by zones was an error, it is stated by those in authority that since she has had authority to take land in this way she has employed no other method; but, as has already been stated, it would appear that the objects she has in view in her takings, viz., the improvement not only of her highways but of the appearance and sanitary conditions of the city, can be attained in no other way.

Other cities of Belgium, notably Liege, have also employed this method of taking by zones, and, acting under wiser guidance or more favorable conditions, have succeeded in carrying out their improvements without having to pass through the period of “storm and stress” which Brussels experienced, and in the case of Liege especially certain improvements carried out by this method have shown a substantial profit.

It is of interest to note in this connection that the power of taking land by zones conferred on the cities of Belgium is not possessed by the State, one reason for this distinction being that the approval of the Provincial Government required in the case of takings by cities affords a check against the abuse of this power which would be lacking in the case of the State.

As a result of this situation, the State has requested the city of Brussels to make such takings on a large scale in the vicinity of the new central railway station which the State is about to build in Brussels, and has made a contract with the city under which the State agrees to advance the money necessary for the operation and to assume the risk of any loss resulting therefrom.

I am informed that Belgium has no law for the assessment of betterments.

Note as to Certain Differences Regarding Damages in Case of Takings by Eminent Domain

In France in the case of takings by right of eminent domain the damages are assessed by a jury, in Belgium, by the judges.

In France it is not the practice to receive the testimony of experts regarding the value of the land.

(It is said that in the last thirty years there has been but one case in Paris in which such testimony was given.)

In Belgium such testimony in the form of written reports is customarily received.

In both countries the awards for damages to land and buildings, i. e., the damages awarded to the owner, are considered by the city authorities to be somewhat in excess of the market value, but not greatly so.

The law of each country gives damages to tenants in addition to the value of the land and buildings, and permits such damages to be given for loss of goodwill, business or custom consequent on being obliged to move to another locality.

It is in connection with the awards of damages for this latter class of injury that complaint as to excessive awards is made, it being considered that the juries in the one country and the judges in the other are more likely to err or be misled regarding the damages claimed for loss of business or custom than as to those which relate to the value of land or buildings.

INDEX

ACQUISITION OF LAND BY MUNICIPALITIES: burden on tax payers, 22; by gift, dedication, or devise, 3, 4; by municipality, limitations of, in United States, 1-2, 14-15; equitable distribution of cost, 1, 22-51; methods of, 1; purchase by cities, 13-17; right to, 1; tax payers protected, 17

ADMINISTRATIVE AGENCIES AND PLANNING, 168-208

ADVERTISING: condemnation costs, 25

ADVERTISING SIGNS: New York court decision on, 151-152

AMENDMENTS TO STATE CONSTITUTION: of New York, 248-249; of Mass., 278; of Ohio, 280; of Wisconsin, 279

APPRAISERS’ HEARINGS: granted by court in Minneapolis, 27-28

ART COMMISSION: in Greater New York, 184

ART JURY: power of, in Philadelphia, 184-185

ASSESSMENT BOARD: determines area for special benefit, 90-91; regulation in New York, 90

ASSESSMENT OF BENEFIT: practice of, in Massachusetts, 85

ASSESSMENTS: by jury, in Kansas City, 71-72; committee appointed in Massachusetts in 1658, 58, 60; court decision in Ohio, 62-64; exemption of, for parks, 62; expense of street openings borne by city, 87-88; first special law in United States, 58; general practice of, 86-87; Greater New York parks, 67-68; Kansas City, 70; King’s Highway, 91; laws in Massachusetts, 64-65; legislation for, in different states by dates, 59-60; methods of, for street widenings in New York City, 87-88; New York law of 1691, 58; park lands, 60; Pennsylvania laws of 1700, 58-59; policy of figuring by front foot, 57; prior to 1902 in New York City, 87-88; relative taxation on park property for, 61; unfair features of, in Boston, 97-98

ASSESSORS: appointment of, in Minneapolis, to determine tax, 68-69

ATTORNEY GENERAL VS. HENRY B. WILLIAMS, 1899: 174 Mass. 476, 219-221

AWARDS OF COMMISSIONS: in condemnation cases, reform needed in cases of, 51

BALTIMORE: topographical survey commission in, 182

BELGIUM: law for excess taking in, 122-125; street system in Brussels, 122-125

BILL-BOARDS, 161-165; dangers from, 164; decisions, 246-248; increase fire hazards, 164; legislation for, 19; license fee discrimination, 162-163; Missouri provisions to regulate, 162-165; opposition to ordinance regulating, 163; regulations for, as nuisances, 164; St. Louis ordinance for, 165; temporary character of, 165

BOARD OF SURVEY: act declared unconstitutional in Boston in 1902, 89-90

BOARDS OF HEALTH: jurisdiction of, for nuisances, 154-155; Massachusetts, practice of, 154-155

BONDS: for land acquirement, 52-55; issue of, for land payments, 52-55; provided by legislature, 52-53

BORROWING MONEY: limit to city’s power, in Milwaukee, 53

BOSTON: area of special benefit in, 90; assessment law unfair, 97-98; attitude toward survey board in, 179; benefits of single council in, 189; board of survey appointed in 1891, 89; board of survey in 1891, 177-179; borrowing plan in, 195; condemnation proceedings in, 36; decision against board of survey in, 89-90; exception to special assessment rule, 96; height of buildings on Copley Square, 18, 19; one-way streets, success of, 204; proceedings for street improvements in, 37-38; special assessments prior to 1891, 89; street commissioners’ awards, 37-38; street commissioners in, 36-38; survey act unconstitutional in 1902, 89-90; unsuitable land remnants after condemnation proceedings in, 104

BOULEVARD PROPERTY: restrictions governing, 17-21

BOULEVARDS: King’s Highway law in St. Louis, 90-91; Missouri ordinance to regulate industries on, 158-160

BUILDING CODES: regulation of, in large cities of United States, 143-144

BUILDING HEIGHTS: Massachusetts acts, 218-219

BUILDING LIMITATIONS, police power, 140-149

BUILDING LINES: designated in streets, 204; establishing boulevards, 211

BUILDING REGULATIONS: city of Köln, Germany, an example, 145; for dwellings, 149-150; German illustration of, 145-146; in Washington, D. C., 142; limitations on height and size, 140-150; New York decisions for, 142; ordinances for, 140-144; restrictions for community benefit, 138-140; type of control of, 138-140

BROOKLYN: Furman Street, 17 Wendell 649. 1836, 243-244

BUILDING RESTRICTIONS: community benefits from, 138-140; excess taking and, 136-137

BUILDINGS IN PARKS: not true economy, 6

BUREAU OF SURVEYS: Philadelphia district surveyors, 176-177

BUREAUS: scope of, in Greater New York, 180-181

CALIFORNIA: findings of commission in, 94-95; pueblo lands in, 16; state codes of, 40

CENTRAL PARK: assessment on land benefited by, 65; creation of, in 1853, 65; land cost of, 65; ratio of increase of land value of, 66-67

CHARLESTON, SOUTH CAROLINA: city hall on park site, 7

CHICAGO: acquisition of school house sites, 42; appreciation of lots, 7-8; commission on street improvements, 39-40; Randolph Street taking, 29, 40; settlements for condemnation in, 42

CITY AS TRUSTEE, 4

CITY GOVERNMENT: unit idea in, 186-188

CITY OWNERSHIP OF LAND: public purpose, 3

CITY PLANNING: administrative agencies in, 168-208; advantages of unit idea, 188; commission appointed, in Seattle, in 1910, 196-197; controversies over civic centers, 8; councilmen and wards, 186; departments created in Pennsylvania and New Jersey, 1911, 190; disregard of expert suggestions in, 185; functions of commission for, 198-208; future improvements considered, 203-206; necessity for correlation in, 200-202; ownership by municipality essential to, 1; police power in, 138-167; politicians’ methods, 186; protection needed for, 7; relation of improvements to whole plan in, 201-202; special boards required for, 183; taste and economy in, 6; various methods in, 168-169

CITY PURCHASES OF LAND: supreme court decision on, 54

CIVIC CENTER BONDS: sale of, in East Denver, 77-78

CLEVELAND: city charter, 299; hearings by jury, in condemnation cases, 41-42; condemnation procedure, regulated by state law, 41

COMMISSIONERS: appointment of condemnation in St. Louis, 33; duties of park, in Kansas City, 69; duties of park, in Indianapolis, 78-83; report on parks in Denver, 74

COMMISSIONS: on city plan, limitations of, cited, 200; mayor as ex-officio chairman in cities, 199; summary of, in cities, 197-198

COMMON LAW JURY: opinions concerning findings by, 48-49

COMMUNITY RIGHTS: scope of, in Germany, 2

COMPENSATION: legislation for, 18-21; method of ascertaining, 48; method of New York constitutional amendment, 48; ordinance governing in Milwaukee, 25-26; commissioners’ salaries in St. Louis, 33

CONDEMNATION OF LAND: act of Virginia assembly in 1906, 110; advantages of preliminary tribunal in, 49-50; advertising expenses in, 25; appeals from findings, in Milwaukee, 39, in Minneapolis, 45; assessment of benefits in, 84-102; compensation by jury, 24; compensation for, in New York City, 43-44; Connecticut acts of, 110-111; constitutional clauses affecting, 23; cost of, in London, 126-133; court decisions in Kansas City, 45-46; direct method in Oregon, 30; disadvantages of, to municipality, 104; English and continental systems, reports from, 308-321; estimation of cost in London, 130; excess, 103-137, 268; expenses of, in New York City, 44; findings by jury in Cleveland, Ohio, 41-42; for Denver parks, 75; French system, reports from, 321-330, 333; in Belgium, 331-334; jury findings in Pennsylvania, 93-94; jury proceedings in France, 120-122; jury verdicts in Portland, Oregon, 93; law in Kansas City, 70-73; legal expenses of, 25; legislation in Ohio and Maryland, 110; new act, in Indianapolis, 47; Ohio laws for, 62; opinion of Archibald R. Watson, 44-45; parallel of, in Philadelphia and Portland, 35; park and playground property, 18-19; parks acquired by, 8; payment of compensation, 23-31; Pennsylvania acts of, 111; Pennsylvania jury findings in, 93; procedure in Portland, 35; proceedings in Boston, 36; proceedings in San Francisco, 43; protection cited in Fourteenth Amendment, 23; Randolph Street, Chicago, 29, 40; relation of special assessments to awards for, 92; settlements for, in Chicago, 42; superior court cases in Indiana, 81; uncertainty of jury findings in, 49

CONFLAGRATION RISKS: height limitations for buildings, 140-149

CONGESTION COMMITTEE: appointment of, in New York, 14

CONNECTICUT: condemnation acts of, 110-111; special acts, 296-298

CONTRACT METHOD: advantages of, for land payments, 55-56

COPLEY SQUARE, BOSTON: restricting height of buildings on, 18, 19. See also _Height Limitations_

CORRELATION: Mayor’s cabinet in Kansas City an experiment in, 187; value in city planning, 200-202

COST OF LAND ACQUISITION: distribution of, 1, 52-102

COUNCILMEN AND WARDS: as affecting city planning, 186

DAMAGES IN CONDEMNATION CASES: findings of jury in Kansas City, 95; hearings on, in Minneapolis, 27-28; jury appeals in St. Louis, 28; objections to rules of, 93-94

DELAWARE PARK, BUFFALO: encroachments upon, 7

DENVER, COLORADO: appraisers in, 32; bonds for land cost in, 75; four park districts in, 73; land condemnation for parks, 75; municipal art commissions in, 200; notice and hearing proceedings in, 28-29; park commissioners’ report, 74

DENVER PARK SYSTEM: extension of civic center, 32; findings of appraisers in, 32

DISTRIBUTION OF COST OF LAND ACQUIREMENT, 1, 52-102

DISTRICT OF COLUMBIA: highway restrictions in, 18

DISTRICTS: creation of park, in Indianapolis, 78; principle of separating in Los Angeles, 155

DWELLINGS: building regulations for, 149-150

EAST DENVER PARK DISTRICT: appraisers’ report on land damages, 77; ordinance of condemnation passed, 76-77; report of park commissioners, 76; sale of “civic center bonds,” 77-78; subdivision of districts, 76

ECONOMY: and good taste in planning, 6; buildings in parks and commons not, 6, 7

EDWARDS VS. BRUORTON: 184 Mass. 529, 245-246

EMINENT DOMAIN: assessors in Washington, 85-86. See also _Condemnation_

ESTHETIC DEVELOPMENTS: restrictions for promoting, 19-21

EXCESS CONDEMNATION: 103-137, 268; adaptability of principles in United States, 116-117; difficulties of, in United States, 133-135; financial results in France, 118-122; financial value of, in United States, 117-118; history of, in United States, 106-111; physical value of, 133-135; relief of, to tax payers, 103-106; substitute for, in America, 105-106. See also _Condemnation_

EXCESS TAKING: amendments for, in Massachusetts, 114-115; amendments for, in Ohio, 114; amendments for, in Wisconsin, 114, 116; causes of failure in London, 131-132; constitutional amendments versus court decisions in, 116; constitutionality in Wisconsin, 116; constitutionality of, 112; constitutionality of, doubted, 114-116; control over remnants in, 134-135; court decision against, in Philadelphia, 112; investigation of, by London county council, 128-132; law for, in Belgium, 122-125; New York amendments for, 114-115; relative increase of property values, 125; restrictions in, 136-137; revenue from remnant sale in France, 119-122; state amendments to, 114-116; supreme court decision on, in Massachusetts, 112-114

EXEMPTIONS: from special assessment, in takings for parks, 61

FIELD COLUMBIAN MUSEUM: decision in case of, 10-12

FIRE HAZARD: increased by bill-boards, 164

FIRE RISKS: ordinances which regulate, 141-143, 148-149

FOURTEENTH AMENDMENT: protection against condemnation, 23

FRANCE: condemnation proceedings in, 120-122; excess condemnation in, 118-122; remnant appropriation, 119; revenue from sale of remnants in, 119-122

FRENCH COUNCIL: remnant taking, 121-122

GERMAN CITIES: community rights of, 2

GERMANY: building regulations in, 145-146; town planning and municipal ownership, 1

GRANT PARK: and Field Museum, 11-12

HEIGHT AND SIZE OF BUILDINGS: limitations and restrictions in, 140-150

HEIGHT LIMITATIONS: absolute, 242-243; conflagration risks, 140-149; court decision on, 19; German versus American regulations for, 145; Massachusetts act of 1898, 18; Massachusetts court decision on, 147-148; Massachusetts statute for, 146-147; ordinances governing, 140-144

HIGHWAYS: boards of survey for, 171-180; cost to owners, 171; restrictions in District of Columbia, 18

HOUSE OF REPRESENTATIVES: 61st Congress, 1910, 213-218

HOUSING EXPERIMENTS: lending land for, 17

HOUSING PROBLEMS: causes which contribute to, 139-140

IMPROVEMENT COSTS: tax payers’ relief from, 56

INCOMES: derived from lease of municipally owned land, 7

INDIANA: acts of, 212

INDIANAPOLIS: advantages derived from park board, 82-83; duties of boards of public works and park commissioners in, 46; four park districts created in, 78; land takings under new act in, 47; park commission in, 37; park commissioners’ duties in, 78-83; park law of, 254-267; real estate experts as advisory committees, 82

INDIANAPOLIS PARK COMMISSION: character of, 37

INDUSTRIAL DISTRICTS: ordinance for, in Los Angeles, 155-156

INDUSTRIAL OCCUPATIONS: regulations governing, 154-157

INSTALMENT PLAN: method of purchase in Minnesota and Wisconsin, 53-55

JURY DECISIONS: in condemnation, 24; land damage, 24

JURY FINDINGS: uncertainty of, in condemnation, 49

KANSAS CITY: assessment on land benefited in, 64; assessments by jury, 71-72; assessments within city limits, 70; correlation and Mayor’s cabinet, 187; division of, into park districts, 69-73; findings of jury for damages in, 95; juries not demanded by corporations, 46, 70; law in condemnation proceedings, 70-73; municipal court on land takings in, 45-46; park commissioners’ duties in, 69; park system in, 72-73; rights of corporations in, 28; special assessments, 72; Swope Park appropriations in, 73

KANSAS CITY VS. BACON ET AL.: 157 Mo. 450, 250-254

KING’S HIGHWAY: assessment provision for, 91; instance of excess condemnation, 130-131

KÖLN SYSTEM: building regulations, 145-149

LAND ACQUISITION, 22-51; condemnation and assessment, 248-254; considerations in, 1; issue of bonds for, 52-55; payment for, by cities, 52-57; special assessments for, 83-102

LAND BENEFITS: Kansas City assessments, 64

LAND COST: excessive, 22, 23

LAND DAMAGES: findings by juries, 24; report on East Denver, 77

LAND DEDICATED IN FEE. See under _Minnesota_, _Ohio_, and other states and cities

LAND ENCROACHMENTS: regulations for, 150-152

LAND FOR SPECIFIC PURPOSES: abandonment of original plan, 5

LAND LOANS: housing experiment, 17

LAND PAYMENTS: instalment plan in Wisconsin and Minnesota, 55

LAND PURCHASE: Wisconsin and Minnesota method of, 53

LAND RESTRICTIONS: governing boulevards, 17-21

LAND VALUES: increase in Central Park, 66-67

LEGISLATION: esthetic considerations, 19; bill-boards, 19; restrictions on use of land, 211

LEGISLATIVE AUTHORITY: limitations of, in benefit districts, for special assessments, 91

LICENSE: bill-board fees, 162-163

LONDON: causes of failure of excess taking in, 131-132; excess taking investigation in, 128-132; financial results in, 125-133; land-taking cost in, 126-133; metropolitan board of works in, 125-133; notable opinions regarding recoupment in excess taking, 129; report of county council, 130

LONDON COUNTY COUNCIL: policy of, 128-132

LOS ANGELES: council ordinance in, 26-27; ordinance for residence and industrial districts, 155-157

LOUISIANA: state codes of, affecting condemnation procedure, 40

MARYLAND: acts of, 1910, 298-299; laws of 1908, 269-271

MASSACHUSETTS: act governing height of buildings, 18; acts of 1898, 218-219; acts of 1904, 221-223; acts of 1905, 223-226; acts of 1907, 280-282; acts of 1912, 267-268; acts of 1913, 283-284; assessment committee appointed in 1658, 58, 60; assessment of benefit in, 85; constitutional amendment allowing excess taking of land in, 278; height limitation decisions, 147-148; laws for assessments in, 64-65; limitations on height of buildings in, 146-147; practice of metropolitan park commission, 65; remnant act in, 107-111; revised laws, 213; supreme court decision on remnants, 112-114; various planning commissions in, 193-195

METROPOLITAN BOARD OF WORKS: operations of, in London, 125-133

METROPOLITAN IMPROVEMENT: borrowing plan, in Boston, 195

METROPOLITAN PARK COMMISSION: practice of, in Massachusetts, 65

MILWAUKEE: area of special benefit in, 90; bond issue for improvements in, 53; borrowing method, for improvements, 53-56; instalment plan of purchase, 53-55; jury appeals for land taking in, 39; ordinance governing compensation, 25-26; street opening, docket entries in, 26

MINNEAPOLIS: special assessments for parks in, 68-69; findings in street cases in, 94; instalment plan of purchase, 53-55; park commissioners on damages in, 27-28; percentage of appeals for land takings in, 45

MINNESOTA: land dedicated in fee, 10

MISSOURI: boulevards and industries, 158-160

MISTAKES OF CITIES: sacrificing city owned real estate, 6

MUNICIPAL ART COMMISSIONS: in Greater New York, 184; powers of commission, for Denver, 200. See also _Art Jury_; _City Planning_

MUNICIPAL BOARD: factor in real estate market, 3

MUNICIPAL INVESTMENTS: financial policy of, 56

MUNICIPALITY: public revenue used for, 3

MUNICIPAL OWNERSHIP: in Germany, 1-2; limitations in United States, 1

MUNICIPAL REGULATIONS: industrial districts restricted by, 158-160

MUNICIPAL WASTE: prevention of, by finance commissions, 17

NEW JERSEY: city planning department created in 1911, 190; laws of, 1913, 294-296

NEW YORK: acts of 1911, 249-250; assessment law of 1691, 58; building regulations decisions, 142; congestion committee, 14; cost of school house sites, 16; court decisions on advertising signs, 151-152; laws of 1913, 284-290; nature of amendment for excess taking in, 115; planning commissions appointed in 1913, 190-191; proposed amendment to constitution, 279; provisions of amendment for excess taking, 114-115; regulation of assessing boards needed, 90

NEW YORK CITY: appointment of commissioners for land taking, 43-44; land taking expenses, 44; legislation of 1911 for park land in, 68; policy of assessment boards prior to 1902, 87-88; school house sites, 15, 16; simple method of ascertaining compensation by, 48; special assessment collection in, 96

NEW YORK, GREATER: art commission, 184; decision providing for assessment of parks in, 67-68; topographical bureau in, 180-181

NOTICE AND HEARING: delays of, in Denver, Colorado, 28-29; proceedings in Denver, 28-29; property owners’ rights, 25

NUISANCES: boards of health and, 154-155; district regulations for, 154-157; municipal regulations for, 152-165; regulation for bill-boards, 164

OHIO: acts of 1904, 268; amendments for excess taking in, 114; amendment to constitution, 280; condemnation laws of cities in, 62; land dedicated in fee, 10; legislation for condemnation, 110

OREGON STATE CODE: condemnation proceedings, 30; determination of damages, 30

OWNERSHIP OF LAND: public, 1-21

PARK BOARDS: duties of, in Indianapolis, 46

PARK COMMISSION: in Indianapolis, 37

PARK DISTRICTS: in Denver, 73; local tax on, 61; treated as separate entities, 69

PARK PURPOSES: use of land for, cases cited, 8-12

PARKS: acquired by condemnation, 8; acquiring titles in Greater New York, 67; appreciation of contiguous property, 61; assessments in acquiring land for, 60; cost of Central, 65; district subdivision in East Denver, 76; districts in Kansas City, 69-73; Indianapolis law, 254-267; land dedicated in fee, 10; legislation in New York City, 68; Minneapolis assessments for, 68; prohibition of bill-boards near, 162; property exempt from tax in United States, 61; separate districts as entities, 69; sign disfigurement of, 151-152; system in Kansas City, 72-73

PARKS AND BOULEVARDS: state decisions, on objectionable occupations near, 166

PARKS AND PLAYGROUNDS: condemnation of private property for, 18-19; reservation of, for city needs, 205

PARK BOARDS: advantages of, in Indianapolis, 82-83

PENNSYLVANIA: acts of, 1907, 272-275; assessment law of, 1700, 58-59; city planning department created in 1911, 190; condemnation acts of, 111; condemnation by jury, 93; decisions on street planning, 174-175; findings of jury in condemnation cases in, 93-94; laws of 1913, 290-294, 300-307; Mutual Life Insurance Company _vs._ Philadelphia, 275-278; plan commission created in 1913, 193; road juries appointed in, 33, 34, 35; statutes for street planning, 174

PHILADELPHIA: area of special benefit in, 90; bureau of surveys, 176-177; city hall in public square, 7; decisions on excess taking, 112; land-taking procedure in, 35; scope of art jury, 184-185; street widening in, 176

PHILADELPHIA ROAD JURIES: appeals from awards by, 34-35

PHYSICAL CHANGES: purposes unsuited, 5; uses of land outgrown, 5

PITTSBURGH: markets in public square, 7

PLANNING: agencies created, 280-282

PLANNING COMMISSIONS: appointment of, in New York in 1913, 190-191; appointment of, in unit idea, 190; creation of, in 1913, in Pennsylvania, 193; history of, 190-198; opportunities of, 202-208

POLICE POWER, 138-167; building limitations, 140-149; regulations for nuisances, 152-165

POLITICIANS: methods in city planning, 186

PORTLAND: jury verdict for condemnation in, 93; land-taking procedure in, 35

PRELIMINARY TRIBUNAL: services of, in condemnation proceedings, 49-50

PRIVATE OWNERS: power limited by municipal regulation, 1; rights in notice and hearing, 25

PRIVATE PROPERTY: control of, for public, 19

PROSPECT PARK: assessment on land benefited by, 65-66; case cited, 9; ratio of increase in value of assessed area of, 66; special assessment district in, 66

PUBLIC CONTROL: private property under, 19

PUBLIC HIGHWAY: regulations to prevent encroachment on, 150-152

PUBLIC LANDS: new use for, 7

PUBLIC OWNERSHIP: of land, 1-21

PUBLIC REVENUE: used by municipality, 3

PUEBLO LANDS: inheritance of, in California, 16

PURCHASE OF LAND: economy in, by cities, 14, 17

RANDOLPH STREET, CHICAGO: finding of commissioners for land taking, 40; widening of, 29

REAL ESTATE: instances of appreciation in Chicago, 7-8; sacrifice of, through error, 6

RECREATIONAL NEEDS: community money appropriated, 2

RECOUPMENT: opinions of Londoners regarding, 129

REMNANT ACT: draft of bill in Massachusetts, 107-110; principles of, 107-111; supreme court decision in Massachusetts, 112-114

REMNANTS: appropriation of, in foreign countries, 107; appropriation of, in France, 119; control in excess taking, 134-135; disposition of, 104-106; Massachusetts act for, 111; near Williamsburg Bridge, 104; policy of French council, 121-122; results of street changes, 103, 104; revenue from sale of, in France, 119-122; unsightliness of, 104-105; unsuitable, in Boston, 104

RESIDENTIAL DISTRICTS: ordinances for, 155-157

RESTRICTIONS: building lines, 211; esthetics promoted by, 19-21

ROAD JURIES: appointment in Philadelphia, 33, 34, 35

RULES OF DAMAGE: objections to, 93-94

SAN FRANCISCO: condemnation proceedings in, 43

SCHOOL HOUSE SITES: acquired by condemnation, in Chicago, 42; minimum price in New York, 16; purchase of, by New York City, 15, 16

SEATTLE: city planning commission appointed in 1910, 196-197

SPECIAL ASSESSMENTS: Boston an exception to rule of, 96; comparison of returns from, 98-99; definition of, 56-57; difference of, from tax, 57; efficiency of, in different communities, 95; former practice in Boston, 89; history of, 87-90; ineffectiveness in Boston, reasons for, 97; in Kansas City, 72; limit of, in some states, 84; process of collection of, in New York City, 96; regulation of, in different states, 83-102; tables showing returns from, 99-101; testing of, an advantage, 101-102

SPECIAL ASSESSMENTS AND AWARDS: relation of, for land takings, 92

SPECIAL BENEFIT: area of, in Boston, 90, in Milwaukee, 90, in Philadelphia, 90, in St. Louis, 90-91; assessing board to determine area, 90-91; assessments for, 84-102

SPECIAL TRIBUNALS: provision for, in cities, 31-32

ST. LOUIS, MISSOURI: appointment of commissioners in, 33; area of special benefit in, 90-91; boulevard law and King’s Highway in, 90-91; city charter, 211; city hall in public square, 7; commission’s compensations, 33; commissioners’ time in reaching decisions, 33; damage appeals by jury, 28; ordinance for bill-boards, 165

STATE LEGISLATION: governing assessments, 59-60

STATE REGULATION: on special assessments, 83-102

STREET COMMISSIONERS: awards of, in Boston, 36-38

STREET PLANNING: bureaus for, 173-180; bureaus for, in Greater New York, 180-181; community benefits of, 169; control of, in cities, 169-183; court decisions on, in Pennsylvania, 174-175; limitations of, in cities, 182; Pennsylvania statutes for, 174; width in cities, 173-176

STREETS: assessments and expenses for opening, 87-88; assessments for widening in New York City, 87-88; building line in, 204; Chicago commission on improvements, 39-40; entries for opening in Milwaukee, 26; lack of co-operation of departments of, 201; Minneapolis findings in, 94; one-way, in Boston, 204; proceedings for improvements in Boston, 37-38; remnants from change in, 103-104; system in Belgium, 122-125; widening of, in Philadelphia, 176; widening of, in business districts, 204-205

STREETS AND PARKS: land taking for, in New York City, 43-44

SUPERIOR COURT: last resort in condemnation cases in Indiana, 81

SUPREME COURT: height limitations, 141-145

SURVEY BOARDS, 280-282; appointed in Boston in 1891, 89, 177-179; supervision of, on highways, 171-180

SURVEY BUREAU: in Philadelphia, 176-177

SURVEY COMMISSION: work of, in Baltimore, 182

SURVEY LINES: in Brooklyn, 243-246

SWOPE PARK, KANSAS CITY: appropriation for, 73

TAX PAYERS: excess condemnation relief, 103-106; land cost a burden to, 22

TOPOGRAPHICAL BUREAU: in Greater New York, 180-181

TOPOGRAPHICAL SURVEY: Baltimore commission, 182

TOWN PLANNING: German examples of, 1

TRIAL BY JURY: in condemnation cases, 24

TRUST ESTATES: administered by cities, 4; city as trustee, 4; creation of, 4

UNDERGROUND WIRES: municipal regulation for, 152

UNIT IDEA: city planning advantages, 188; in city government, 186-188; planning commissions appointed, 190

VIRGINIA: acts of assembly in 1906, 271; condemnation, in 1906 assembly, 110

WASHINGTON, D. C.: building regulations in, 142

WASHINGTON: eminent domain assessors in, 85-86; state codes of, 50

WATSON, ARCHIBALD R.: opinion of, on condemnation matters, 44-45

WELCH, TRUSTEE, VS. SWASEY, _et al._, 1908, 234-242

WELCH VS. SWASEY: 193 Mass. 364, 226-234

WILLIAMSBURG BRIDGE: remnants near, 104

WISCONSIN: amendments for excess taking in, 114, 116; amendment to constitution, 279

WORCESTER, MASSACHUSETTS: city hall in common, 6-7

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