CHAPTER VIII

THE PLAN OF CHICAGO: THE RESULT OF SYSTEMATIC STUDY: THE COST INVOLVED IN CARRYING OUT THE WORK: THE PEOPLE ARE FINANCIALLY ABLE TO REALIZE THE PLAN: THE ELEMENTS INVOLVED: HOW THE COST MAY BE DIVIDED: THE FINAL RESULT.

The plan of Chicago as presented in illustration and text is the result of a systematic and comprehensive study, carried on during a period of thirty months, with the sole purpose of mapping out an ideal project for the physical development of this city. Perfection of detail is not claimed, but the design as a whole is placed before the public in the confident belief that it points the way to realize civic conditions of unusual economy, convenience, and beauty.

It is fully realized that a plan calling for improvements on a scale larger and more inclusive than any heretofore proposed seems, on first consideration, beyond the financial ability of the community. If, however, the plan meets public approval, it can be executed without seriously increasing present burdens. The very growth of the city, creating as it does wealth greater than mines can produce, gives a basis of bond issues in excess of the utmost cost involved in carrying out this plan. The increase in the assessed value of real estate in the city of Chicago for the past ten years exceeds the expense required to put the plan into execution; and at the same time the very character of the proposed changes is such as to stimulate the increase in wealth. The public, therefore, has the power to put the plan into effect if it shall determine to do so.

It is quite possible that some revision of existing laws may be necessary in order to enable the people to carry out this project; but this is clearly within the power of the people themselves. The realization of the plan, therefore, depends entirely on the strength of the public sentiment in its favor. And what hope is there that the people will desire to make Chicago an ideal city? A brief survey of the past will help to form an opinion on this subject.

Sixty years ago, when Chicago was scarcely more than a village, it became apparent that in order to secure proper drainage the street levels must be raised to a considerable extent throughout what we know as the old city, from the main river to Twelfth Street, and also for a distance on the West and North Sides. This project, albeit a very formidable one for that time, was promptly entered upon and duly carried out, although it involved raising all the streets and most of the buildings throughout that large territory. For that day and generation the undertaking was much more serious than the reconstruction of the city thoroughfares now proposed.

Again, some fifty years ago, when the idea of creating great metropolitan park areas was new, Chicago undertook to acquire and improve a chain of parks surrounding the city on three sides. This scheme, which has well supplied the needs of Chicago until recent times, was carried out in such a manner that it never was burdensome. The creation of a park system for Chicago was not undertaken from motives of utility, but purely because of a desire to make the city attractive; and the success was magnificent.

Later, in the Eighties, the purification of the water of Lake Michigan by the diversion of the sewage became a public issue. Once again the people of Chicago rose to the occasion; and after years of hard work the Drainage Canal, built at a cost of $60,000,000, has been completed.

Next came the World’s Fair, in the early Nineties, and here also a result was accomplished which has never been surpassed either in scope or in architectural beauty. The cost of the Fair (over $20,000,000 for grounds and buildings alone) was very large for that day. The fact that the Fair came into being here indicated that this people, generally regarded as a commercial community, were deeply appreciative of the higher forms of good order and municipal beauty.

The Chicago World’s Fair, like the raising of the grades of the city, the creation of a complete system of parks and boulevards, and the building of the Drainage Canal, went far beyond anything of the same kind ever before undertaken by a city. These four works are the greatest ones which have been achieved by Chicago. They have proved the readiness of the people to take up large schemes of public improvement which at the time of their inception required great foresight and great faith in the future. Two of them were demanded by considerations exclusively practical, while the other two were not so regarded, but on the other hand were the expression of the deeper sense in man of the value of delightful surroundings. If an accurate statement of the costs of the four improvements could be made, it would probably show that about equal sums have been spent on the practical and on the æsthetic side.

Besides the public enterprises mentioned, the people of Chicago, either collectively or as individuals, have established many agencies for the improvement of the intellectual, social, moral, and æsthetic conditions. The Chicago Orchestra occupies land and buildings on Michigan Avenue which have a present value of over a million and a quarter of dollars; and during the past twenty years private subscriptions have amounted to at least another million, all expended for an organization purely artistic. The Art Institute building in Grant Park cost $700,000, and since its completion, in 1893, it has never been closed for a day. Besides its large and excellent art school, there is a good collection of the works of old and modern masters, which is constantly receiving additions. The Crerar Library has an endowment fund of three and a half millions, besides a substantial building fund; and the Newberry Library and the Armour Institute of Technology are other worthy public benefactions.

Especially notable are the educational foundations which contribute so largely to the intellectual life of the city, and exert an influence throughout the Middle West,—Lake Forest University, Northwestern University, and the University of Chicago. The last-named institution, established in 1892, has already taken its place among the foremost universities in this country, not only by reason of its endowment and property (representing more than $23,000,000), but also because of wise administration along a well-considered plan.

Quite in accord with the plan of Chicago is the Benjamin Franklin Ferguson Monument Fund of a million dollars, the income of which is available for defraying the cost of statuary commemorating worthy men and women of America, or important events in American history, to be erected in the parks and boulevards of the city, under the direction of the trustees of the Art Institute. The Field Museum, representing gifts aggregating $9,000,000, is a further instance of loyalty to the city and a desire for its improvement.

Such enterprises and such gifts as those enumerated show what may be expected from individual benefactions as wealth increases and the idea of public service is encouraged. When opportunities for enriching the city are provided, individual citizens rise to the occasion, and find true satisfaction in leaving memorials useful or agreeable to the people.

Mere increase in numbers does not warrant the belief that public sentiment in favor of extensive public works will grow in proportion to the population; but the history of the past does prove that the people of Chicago are always ready and anxious to follow when the way to great benefits is plainly open. We believe that the tendency which the community has shown by its acts points hopefully to the adoption of a great scheme of public improvement. In other words, Chicago having already carried out large projects strictly on the lines of this report, may we not, therefore, confidently expect this people to go on doing as they have done?

There is a still stronger reason for the belief that the public will favor such a plan as is herein presented. It lies in the growing love of good order, due to the advance in education. Every one knows that the civic conditions which prevailed fifty years ago would not now be tolerated anywhere; and every one believes that conditions of to-day will not be tolerated by the men who shall follow us. This must be so, unless progress has ceased. The education of a community inevitably brings about a higher appreciation of the value of systematic improvement, and results in a strong desire on the part of the people to be surrounded by conditions in harmony with the growth of good taste; and as fast as the people can be brought to see the advantage to them of more orderly arrangement of the streets, transportation lines, and parks, it is well-nigh certain that they will bring about such desirable ends. Thus do the dreams of to-day become the commonplaces of to-morrow; and what we now deem fanciful will become mere matter-of-fact to the man of the future.

If the plan as a whole be approved by the majority of our citizens because it is found to be both practical and beautiful, the next question is as to what it commits us. In answering this query a general review of the principal elements composing the plan will be of value. The following list comprises the main items:

_First._ The improvement of the Lake front.

_Second._ The creation of a system of highways outside the city.

_Third._ The improvement of railway terminals, and the development of a complete traction system for both freight and passengers.

_Fourth._ The acquisition of an outer park system, and of parkway circuits.

_Fifth._ The systematic arrangement of the streets and avenues within the city, in order to facilitate the movement to and from the business district.

_Sixth._ The development of centers of intellectual life and of civic administration, so related as to give coherence and unity to the city.

The improvement of the Lake front from Winnetka to the Indiana line is an economic necessity. As has been stated, the aggregate of the waste material seeking dumping ground on the Lake shore because that is the cheapest place to deposit it, is not less than one million cubic yards per annum. This material is sufficient to produce annually from twenty-seven to thirty acres of land if used to build the Lake parkways and park strips herein recommended. The park authorities would only have to furnish breakwaters and bridges and to finish the grounds. The utilization of this material in thirty years would produce all the Lake front land recommended in the report for the region between Grant and Jackson parks. But long before the expiration of the thirty years the amount of filling urgently seeking the Lake front dump will be enormously increased. This dirt should be utilized for the public benefit, instead of being wasted as at present in the open Lake, where it becomes detrimental to health and an interference to navigation. The dirt to be disposed of in building new traction tunnels under the principal streets of the city will go far toward the completion of the new Lake shore parks. It is evident, therefore, that this improvement, involving the redemption of the entire Lake front from Winnetka to the Indiana state line, and the creation of an extremely beautiful and useful public recreation ground, will involve very little public expense. There can be no doubt that this part of the plan of Chicago will be carried through; and in fact much is already being accomplished along these lines.

The interurban highway system can be realized very cheaply. Ninety-five per cent of the necessary roads now exist as public highways, and the cost of acquiring the other five per cent will be merely nominal. The diagram (Plate XL) is laid out with a radius of approximately sixty miles from the city hall. The cost of widening that comparatively small portion of the roadways which require to be widened; the straightening of the few which need such treatment; the planting of trees along the highways; and the macadamizing of the roads are improvements that may be hastened by concerted intelligent action. The expense involved is comparatively small, but the economy and convenience to the public are very large. Is it not evident that this portion of the plan can be realized at no distant day provided a strong organization of active men shall be formed for the purpose of carrying it into effect?

The suggestions in regard to trunk lines, their rights-of-way, stations, and general conditions, are many and serious. The suggestions have been made for the purpose of bringing about the greatest economy of money and time, both in freight and passenger handling. If the recommendations herein contained will produce conditions really beneficial to the individual shipper and passenger, undoubtedly they will be found best for the railroads themselves. The direct object in view is to free a large portion of the South Side from tracks and stations and restore it to business use; to double the capacity of the streets of the whole city by opening circulation to the north, west, and south, and by connecting the outlying parts in the best possible manner with the heart of the city. Over and above all these considerations, highly important as they all are, is economy in the freight handling of Chicago as a shipping center. The object here has been to find that general principle which, if applied, will give to the merchants, manufacturers, and jobbers of this city all the advantages that should naturally be theirs throughout the great territory dominated by Chicago. If the general scheme herein proposed shall not be adopted by the public and the railroads, some other inevitably must be, because the very life of the community is involved in the solution of this problem. The commercial prosperity of the community is represented by the cost per ton of handling freight into and out of this territory as a shipping center. General changes in railroad conditions take years to accomplish. That will be the case if such a scheme as we recommend is carried out; but the public should remember that they will not be taxed to pay for it. When these improvements come they will be railroad enterprises, undertaken by the railroads and carried out by the railroads.

The traction recommendations contained in this report are already in progress, and no question need be raised as to whether or not this portion of work will be carried out. It has practically been decided upon, and no doubt will be accomplished. The cost will be borne in part by the traction lines themselves, and partly by the public.

The additional parks and parkways recommended are extensive, as should be the case. Although it is true that the men of forty years ago did devise a scheme which has been sufficient almost up to the present moment, it is also true that the number, location, and arrangement of the parks and parkways of Chicago to-day are entirely inadequate for its future development; and nothing is suggested in this report except what has seemed to be absolutely required. Fifty years ago, before population had become dense in certain portions of the city, people could live without parks; but we of to-day cannot. We now regard the promotion of robust health of body and mind as necessary public duties, in order that the individual may be benefited, and that the community at large may possess a higher average degree of good citizenship. And after all has been said, good citizenship is the prime object of good city planning. In some locations parks and parkways are sufficient to accommodate the people in the immediate neighborhoods; other sections of this city, and suburbs which will soon become parts of this city, should be equally well provided. “Nature,” says President Charles W. Eliot, “is the greatest factor in the continuous education of man and woman.” The extensive woodlands proposed are an addition not usually designed for American cities, although almost invariably used in Europe. The cost of these added parks and woodlands will be considerable, and it must be borne by the public; but it is a sane proposition that the people of Chicago and its suburbs should have the sixty thousand acres of wooded territory as well as the great Bow, (Plate CIII) which will occupy from six to eight hundred additional acres. The acquisition and completion of an outer park system may easily be carried through in ten years; and if the cost shall be distributed over that period of time, it will not prove burdensome. The returns will come in the shape of increase of health and joy of living for all the people; and incidentally the value of every real estate holding in the city will be enhanced.

The land necessary for the civic center should be secured at once, while values at the point proposed are reasonable. For the time being this land may be treated as park space; but the sites and the general scheme of grouping for the buildings should be approved, so that as the city, the county, and the general government outgrow their present structures, the new ones may take their appointed places, each one contributing its part to an orderly and convenient scheme. The adoption of such a scheme would save a very large amount of money in the purchase of public building sites; and would create stability in real estate values. To the West Side especially the development of a civic center along the lines indicated is a matter of prime importance; for it will give to that portion of the city the needed impetus towards higher standards than now prevail there. At the same time it will benefit all other parts of the city, since it is for the advantage of Chicago as a whole that each portion shall be developed equally with every other portion. The cost of the civic center should be paid by the whole community.

The street plan as laid out involves a very considerable amount of money; but it will be found that in Chicago as in other cities, the opening of new thoroughfares, although involving large initial expense, creates an increase in values, due to increase in convenience and the provision for adequate sites for the increasing retail traffic of the city. The cost will amount to many millions of dollars, but the result will be continuous prosperity for all who dwell here; and such prosperity the city cannot have unless it becomes a convenient and pleasant place in which to live.

Finally, it seems probable that the schemes of outer highways and of all the Lake front improvements may come about quite naturally and with very little expense to the city; that the railways will pay most of the expense of their changes and improvements, thus leaving a portion of the cost of the traction system and all of the cost of the civic center, of the parks and parkways, and of the street development for the general public to meet. The community has ample financial ability to do its part without placing undue burdens upon the people. Paris had not much more than half a million people, and her commercial prospects were far less than are ours to-day, when that municipality adopted a street improvement scheme involving over two hundred and sixty million dollars, and carried it to completion in thirty-five years. The motive of the French people in undertaking this enterprise was to create a great attraction for all men: a city so delightful as to insure continuous prosperity to the inhabitants. The success of the undertaking has amply justified the pains and the expense. People from all over the world visit and linger in Paris. No matter where they make their money, they go there to spend it; and every proprietor and workman in Paris benefits by reason of that fact. Conditions in Chicago are such as to repel outsiders and drive away those who are free to go. The cream of our own earnings should be spent here, while the city should become a magnet, drawing to us those who wish to enjoy life. The change would mean prosperity, effective, certain, and forever continuous.

If, therefore, the plan is a good one, its adoption and realization will produce for us conditions in which business enterprises can be carried on with the utmost economy, and with the certainty of successful issue, while we and our children can enjoy and improve life as we cannot now do. Then our own people will become home-keepers, and the stranger will seek our gates.

[Illustration: CXLII. THE GREAT LAKES.

From the group by Lorado Taft.]

LEGAL ASPECTS OF THE PLAN OF CHICAGO

The following opinion, prepared by WALTER L. FISHER, as counsel for the Plan Committee of the Commercial Club, has been submitted to EDWARD J. BRUNDAGE, Corporation Counsel for the City of Chicago, HARRY A. LEWIS, County Attorney of Cook County, BENJAMIN F. RICHOLSON, Attorney for the West Chicago Park Commissioners, CHARLES A. CHURAN, Attorney for the Commissioners of Lincoln Park, ROBERT REDFIELD, Attorney for the South Park Commissioners, to EDGAR B. TOLMAN, FRANK L. SHEPARD, HARRY S. MECARTNEY, FRANK HAMLIN, and R. P. HOLLETT, who have been counsel for these official bodies, respectively, and to MILTON J. FOREMAN, Member of the City Council of Chicago, and GEORGE A. MASON, Special Assessment Attorney for the City, all of whom concur in the conclusions and recommendations stated. WILLIAM W. CASE assisted in the preparation of the opinion.

LEGAL ASPECTS OF THE PLAN OF CHICAGO

BY WALTER L. FISHER, OF THE CHICAGO BAR

INTRODUCTORY

The purpose of an inquiry into the legal aspects of the Plan of Chicago is to ascertain to what extent and in what manner the Plan can be carried out under the existing laws, to suggest such additional legislation as may be necessary or desirable, and to consider how far such legislation is controlled or prevented by existing constitutional provisions. It is gratifying to be able to state at the outset that the main structure of the Plan of Chicago is framed with due regard to the limitations imposed by law upon public enterprises, although important details cannot be carried into effect without some aid from the legislature.

In considering the legal aspects of city planning in the United States, the first inquiry naturally relates to the limitations contained in the state and federal constitutions. Governmental powers in the United States, unlike those of many European countries, are defined by written constitutions, which would undoubtedly prevent the imitation here of some of the sweeping undertakings and arbitrary though effective methods of European city planning. European governments have carried to a successful issue many wide-reaching reforms which could be undertaken in this country only with important modifications. It is these modifications with which we are chiefly concerned. A Prussian statute enacted in 1902 empowered the police authorities to prohibit advertising which was calculated to disfigure the landscape;[27] and a provision of the Prussian Code declares that no building shall be so erected as to disfigure cities and public places.[28] Regulations intended to maintain the suburban character of certain localities have been upheld in Prussia, in the absence of statute, as sanitary measures within the jurisdiction of the police authorities, and in other German cities they are authorized by law.[29] The State of Illinois, in attempting to follow such examples, would be obliged to reckon not only with that provision of her own constitution which forbids the taking of private property for public use without just compensation, but also with that other provision, found both in her own constitution and in that of the United States, which declares that no person shall be deprived of property without due process of law. In England, as long ago as 1862, the Metropolitan Local Management Act authorized the Board of Public Works to fix building lines to which all new buildings must conform, and to prohibit the erection of any house beyond the general line of buildings in any street in which the same is situated.[30] Compensation is allowed to any owner of property who can show himself to be injured by such restrictions upon the use of his land, but the parliamentary fiat determines forever that he must submit to the regulations thus imposed upon him. In this country the owner, even if compensation were provided, could demand the judgment of a court whether the use for which his property was taken was a “public use,” within the judicial definition of that phrase as found in our constitutions. In Illinois he could insist upon his further constitutional privilege of having his compensation fixed by a jury before the restriction became operative. The public authorities of Paris, when condemning land for municipal purposes, were authorized to and did take more extensive areas than were actually needed, seeking by this means to recoup the cost of the improvements by selling the adjacent premises at the enhanced values produced by these improvements. Indeed, the contractors for these public works were themselves authorized, in some cases, to acquire considerable areas outside the lines of the actual improvement, so that the prospective profits thus to be realized might be deducted from the cost of the improvement to the public.[31] Governments in this country are forbidden by constitutional principles thus to take private property against the will of the owner merely for pecuniary profit. Many cities in Great Britain and on the continent have removed the entire population of insanitary districts and have constructed new dwellings, at public expense, in the renovated area. Such features figure largely in the town-planning schemes of Europe, but have been considered inexpedient or unnecessary here. The town-planning bill introduced in Parliament last year by John Burns not only confers power upon municipal authorities to impose a town-planning scheme on any land within or near their boundaries, but enables the authorities to take judgment against the owners of neighboring property for the amount by which its value is enhanced through the operation of the plan. Such methods of procedure, however justifiable from an economic point of view, would be contrary to established public policy in this country. The constitution of Illinois requires uniformity of taxation with respect to both persons and property, and while it permits the cost of local improvements to be assessed by the authorities of cities, towns and villages upon property specially benefited thereby, it not only limits the aggregate amount of such special assessments to the cost of the improvement, but requires the distribution of that aggregate over all property similarly benefited.

While, therefore, in every civilized country the makers of laws strive to protect private property and private rights from spoliation and abuse, it remains true that extensive municipal and governmental works are more quickly and easily executed in those parts of the world where the legislative authorities have a free hand than they can be under a system of rigid constitutional restraints. Those vast projects which have created the modern city of Paris and are transforming London and many continental cities would necessarily follow different channels in this country; yet there is every reason to believe that the constitutional limitations which here determine the form of public improvements do not really prohibit any measures that in this country would be considered wise. It will be found that the restraints of the fundamental law under which we live do not forbid any of the steps recommended in the proposed Plan of Chicago, although in many important respects they do fix and control the manner in which, and the means by which, these steps can be taken. The state, and its agent, the municipal corporation, are fully empowered to protect and to promote the public welfare, and for that purpose have been vested with the three great functions of government known as the police power, the power of eminent domain, and the power of taxation, in one or another of which will be found adequate authority for the accomplishment of the Plan.

The police power has been characterized by the Supreme Court of Illinois as “that inherent plenary power in the state which permits it to prohibit all things hurtful to the comfort, welfare and safety of society.”[32] Avoiding too rigid an exactness of definition, the courts have described it in terms which are said to be summed up in the statement that “the police power, in its broadest acceptation, means the general power of a government to preserve and promote the public welfare by prohibiting all things hurtful to the comfort, safety and welfare of society, and establishing such rules and regulations for the conduct of all persons, and the use and management of all property, as may be conducive to the public interest.”[33] It is only under the police power that men can be required to submit to the destruction or appropriation of their property without monetary recompense for the loss.[34]

In the exercise of the power of eminent domain, the state may take private property, but only for a “public use” and only upon payment of just compensation. No man can, in this country, be required to surrender his property, even for full value, unless the use for which it is taken is public. The right assumed by some European governments to condemn large areas of land in order, by selling part of it, to defray the cost of improving the rest, would be subject in this country to the inquiry whether such a purpose is “public,” within the meaning of that term as expounded by the courts. No judge grounded in the principles of American jurisprudence would countenance the argument that mere pecuniary advantage to a municipality could, without other pretext, justify the taking of private property against the will of the owner. It is quite another question, however, whether the condemnation of more land than is directly involved may not be justified as an incident of a public improvement, when it could not be defended as an independent speculation.

The last of the three governmental powers mentioned is the power of taxation. Like the power of eminent domain, it is inherent in every sovereign state, but no taxes can be levied for other than public purposes. They may be general, representing the tribute due from every person to the government which protects him; or special, measured or limited by the particular benefit accruing to his property from a local improvement. The cost of public works may be paid for outright from the proceeds of a single levy or assessment, or may be defrayed from the proceeds of bonds to be liquidated by annual contributions distributed over a term of years. The constitution of Illinois requires provision to be made for paying all municipal bonds within twenty years, and limits the amount of indebtedness which any municipal body may incur to five per cent of the assessed value of taxable property therein; but does not impose any general limitation upon the amount or rate of taxes which municipal bodies may be authorized to levy.

Such is a brief characterization of the three functions of government upon which chiefly depends the execution of public enterprises in this country. The Plan of Chicago, now under consideration, embraces as its leading features the acquisition, maintenance, and control of parks, boulevards and arteries of communication throughout the metropolitan territory tributary to Chicago; the establishment and control of similar parks, circuits and avenues within the city itself, and incidentally the reclamation of slums and congested areas; the embellishment of the shore of Lake Michigan; the consolidation and rearrangement of freight and passenger terminals; and the creation of a Civic Center connected with other parts of the city by convenient avenues, and in or about which shall be grouped important public buildings which may hereafter be erected.

OUTER PARKS, BOULEVARDS, AND CIRCUITS

The outer belt of parks and forest preserves, the boulevards and highways connecting country towns with each other and with the city, and the extension of a driveway around the shore of Lake Michigan, involve relations with counties outside of Cook, and even with states beyond the borders of Illinois. It may safely be assumed, without specific inquiry, that the laws of Wisconsin and Indiana, if not already adequate to the performance of their share in the project, can easily be made so by the people of those states.

In Illinois the existing laws are in the main sufficient for the needs of local communities which desire, by the exercise of their present taxing powers or the organization of park districts, to bear their part in a general scheme of improvement. The Act of June 19, 1893,[35] provides for the incorporation of park districts to connect two or more cities or villages by means of boulevards or parks. A more comprehensive measure is the Act of June 24, 1895,[36] under which several park districts in Cook County, such as those at Winnetka, Kenilworth, Wilmette and Rogers Park, have been organized by vote of the people of those communities. A district formed under this act may acquire land for parks or boulevards by purchase or condemnation, and the board of park commissioners may accept from any municipality in the district the control of any park or boulevard therein. Bonds may be issued up to three per cent of the assessed valuation of property in the district, and, in addition to taxes for the payment thereof, a general tax of four mills on the dollar may be collected. Special assessments for local improvements may be levied through the township authorities. Districts bordering upon navigable bodies of water are empowered to reclaim submerged lands, and the title of the state is granted for that purpose to the park district to which such submerged land is adjacent. The park authorities could construct islands or driveways beyond the present water line. They would be required to recompense the owners of the shore for any loss or diminution of their riparian rights; but the benefits to the shore lands would doubtless in many, if not most, instances more than offset the cost of the property and property rights that would be taken or damaged for the improvement.

Among local agencies which might co-operate in suburban development may be mentioned the townships. These have long exercised jurisdiction over country roads, and they were authorized by two Acts of March 2, 1907,[37] to secure small parks by purchase or condemnation and upon vote of the people to issue bonds and levy taxes for that purpose. No park so established can be more than ten acres in extent.

Such limited local authorities may prove serviceable auxiliaries to the main plan, but their powers are inadequate to the execution of the more general features of metropolitan development; nor would it be just to impose on local tax-payers the entire burden of such improvements as the acquisition of extensive areas of park or woodland chiefly for the resort and recreation of the people of the city. These enterprises require the co-operation of a central body of more extensive powers and larger resources.

In looking for instrumentalities through which such plans might be executed, the park legislation of Massachusetts claims first attention. The Metropolitan Park Commission, under whose auspices the city and suburban park system of Boston has been developed, was created by an act of the legislature of Massachusetts, approved June 3, 1893.[38] It consists of five members, appointed by the governor, and exercises jurisdiction over Boston and various other cities and towns which constitute the Metropolitan Parks District. The board has power to acquire and maintain open spaces, taking in fee or otherwise any land necessary for that purpose, and acting so far as may be in consultation with local boards. Any open space in a city or town may be turned over to the board by the local authorities. Subsequent acts empower the commission to construct roadways and boulevards, to purchase or condemn land for that purpose, and to assess property specially benefited thereby. The commissioners are authorized to abandon land which they have acquired, thereby revesting title in the original owner and reducing the damages which he might otherwise justly claim. Authority is also given to sell, at public or private sale, any lands or rights acquired and paid for. Property taken by the commission vests in the Commonwealth of Massachusetts, and is to be paid for by state bonds extending over a term of not more than forty years. Taxes to meet the bonds are, however, apportioned among the cities and towns within the district, and a reapportionment is to be made once in five years. By an Act of March 17, 1903, the commission and the park officers in any city or town were empowered to make reasonable rules and regulations respecting the display of signs or advertisements visible from public parks and parkways; but the Supreme Court, in the case of _Commonwealth_ v. _Boston Advertising Co._, 188 Mass. 348, held that this statute did not and could not confer upon the public authorities any power to prohibit the owners of land from leasing it for advertising purposes, unless just compensation were provided.

The Metropolitan Park Commission is a creature of the state—not of the particular communities directly affected—and over its fortunes the legislature has maintained a constant fostering care, extending and defining its jurisdiction by successive acts, and granting fresh financial powers as occasion arose. Local home rule is a political principle not so firmly established there as in Illinois. Here it would not be feasible to create a similar body by legislative fiat without the concurring vote of the people of the district over which its jurisdiction extended. Legislation designed for similar ends is more likely, in this state, to take the general form of enlargement of the powers and functions of the city and the county; or, especially if more than one county is involved, of the creation of a special commission endowed with extraordinary powers and similar in many of its features to the forest-preserve districts contemplated by the Act approved May 18, 1905.[39]

This measure, which is entitled “An Act to provide for the creation of forest-preserve districts,” authorizes the incorporation as a forest-preserve district of any area of contiguous territory containing one or more cities, towns, or villages within the same or adjoining counties. Such a district can only be organized by the affirmative vote of the inhabitants; and if it embraces parts of two counties, there must be a favorable vote in each. The affairs of the district are to be managed by a president and six commissioners, appointed by the governor and drawn from different political parties. The president alone receives a salary. The board is authorized to accept control of streets in any city, town, or village on request of the local authorities, and to designate existing streets and roads as pleasure driveways, and lay out and establish others for that purpose; but none of these is to be within any public park district. Power is given to acquire, by gift, purchase, or condemnation, any land not already in a park district for driveways and forest preserves. Bonds may be issued to the amount of one per cent of the assessed value of all property in the district, and this amount may be increased by a vote of the people to three per cent. Authority is given to levy taxes for the payment of bonds and interest thereon, and also to levy for general purposes an additional tax not exceeding one mill on the dollar.

An attempt was made under this act to organize as a forest-preserve district all of Cook County, except a few towns in the extreme north and south ends thereof. It received a majority of the votes cast on the proposition, but not a majority of those cast at the regular election held on the same day. This has left some doubt as to the legal effect of the vote. The result was largely due to indifference and to the creation of a new taxing body with what were regarded by many as unnecessarily extensive powers. A committee of the legislature was appointed to report a revised act more consonant with the wishes of the people. Among the changes which have been suggested are that each district shall be confined to a single county; that the members of the commission shall be appointed by the president of the county board; and that taxes for the purposes contemplated by the act shall not be levied by the district authorities themselves but by the board of county commissioners. The proposed forest-preserve districts are essentially park districts, though called by a different name; and the main objects of this act might be accomplished by creating a forest-preserve commission as a department of the county government, under appropriate legislation—a method certainly less open to attack from a legal point of view than the one embodied in the Forest-Preserve Act of 1905.[40]

Counties in Illinois have under existing law no general powers which would enable them to take a prominent part in plans for the development of the metropolitan district of Chicago; but it would be competent for the legislature to invest them with more extensive functions. There is in the constitution no limit upon the amount of county taxes which may be voted by the people; and county bonds, when authorized by popular vote, may be issued for any authorized county purpose up to the constitutional limit of five per cent of the assessed value of taxable property in the county.

In an inventory of the agencies which might be capable of sharing in the creation of outer parks and boulevards, mention should not be omitted of a Greater City of Chicago, which might be invested by the legislature with power to purchase or condemn land far beyond its own corporate limits in order to establish a system of parks and boulevards commensurate with the needs of its inhabitants.[41] Some doubt has been suggested as to the constitutionality of such a grant of power if attempted under the so-called Chicago charter amendment to the state constitution,[42] which authorizes “a special charter of local municipal government for the territory now or hereafter embraced within the limits of the city of Chicago.” The effective policing by the city of parks and boulevards outside the city limits would present practical difficulties, and the plan would impose upon the city the entire cost of improvements in the advantages of which the suburban districts in which these improvements were located would share. If all of the people and property benefited are to bear their proportionate share of the expense, the proposed system of outer parks and boulevards should be acquired and controlled by the county or by a new municipal body.

CITY PARKS, SQUARES, BOULEVARDS, AND AVENUES

The existing municipal corporations that might be authorized to bear a part in realizing the Plan within the city limits are the city of Chicago, the county of Cook, and the several park boards. Any participation by the Sanitary District, as by bridging its canals or improving the appearance of their banks, would be incidental.

City councils are empowered by Article V of the City and Village Act of 1872 to lay out, establish, open, widen, pave, and otherwise improve streets, alleys, avenues, parks, and public grounds, and to plant trees upon and regulate the use of the same.[43] In the case of _Thompson_ v. _Highland Park_, 187 Ill. 265, the court sustained the power of the city to include parkways and grass plots in the improvement of a street to be paid for by special assessment. The special Act of May 18, 1905,[44] relating to the city of Chicago only, confers upon the council power to acquire, by purchase or otherwise, municipal parks and playgrounds, and declares that the city may exercise the right of eminent domain for the acquirement of property useful, advantageous, or desirable for municipal purposes; and that the procedure in such cases shall be, as nearly as may be, like that provided for in the Act of June 14, 1897, concerning local improvements as amended or to be amended. Land taken for a park is “property useful, advantageous, or desirable for municipal purposes,” and a public park is a “local improvement,” the cost of which may be assessed upon contiguous property to the extent of the special benefits when the legislature authorizes that course to be pursued.[45] The “Act concerning local improvements”[46] directs the city council to provide, in any ordinance for a local improvement, whether it shall be made by special assessment or special taxation, or by general taxation, or otherwise; and, in sections 13 to 33, inclusive, defines the procedure for ascertaining the compensation to be paid for private property taken or damaged, and for assessing the cost on other property to the extent to which it is specially benefited. The city, therefore, already possesses power to acquire public parks within the city limits and to assess the cost, or the greater part thereof, against property in the neighborhood of the improvement. Under the present law all ordinances for local improvements in the city, to be paid for wholly or in part by special assessment or special taxation, must originate with the board of local improvements; but if the park boards were merged in the city government, it might be feasible to grant to an administrative department of parks the initiative with respect to local improvements within their special jurisdiction.[47] The city authorities have now ample power, to the extent of their financial resources, to improve and widen existing streets and to open new streets, parks and public grounds. The city council has adequate discretion to determine how wide any street shall be, and whether it shall be devoted entirely to travel or given up partly to lawns, trees, and parkways.

It is highly important that the city should be able effectively to control the traffic on streets and boulevards, and especially to keep designated residence streets free from heavy teaming or particular kinds of traffic (such as through teaming, not going to or from property fronting on the particular street), without formally turning such streets over to park authorities as boulevards. This power may be given by the 96th paragraph of Section 1 of Article V of the statute in relation to cities, villages, and towns,[48] which authorizes the city council to “direct, license, and control all wagons and other vehicles conveying loads within the city, or any particular class of such wagons or other vehicles.” If more specific authority is required, it should be obtained from the legislature. The streets are held by the city in trust for the general public and cannot be diverted from that purpose by the city without special authority.[49] The legislature, however, as representative of the public, has control over them, and may limit the public right to make free use of streets; as it actually has done in the statute authorizing the wheel tax.[50] It may authorize municipal authorities to designate certain streets as pleasure driveways, to the exclusion of heavy traffic,[51] or to turn over any of its streets to park boards for boulevard and driveway purposes;[52] but the city cannot, without legislative authority, divest itself of the control of a street nor restrict the public in the reasonable use and enjoyment thereof.[53] General authority has been conferred upon city councils to regulate the use of streets, but this provision of the statute cannot safely be relied upon as an unqualified delegation of power to set aside some streets for exclusive use as pleasure driveways, since the Act of March 27, 1889,[54] expressly empowers the municipal authorities of a city or village to select for that purpose _not more than two streets_ within the corporate limits. This doubt the legislature should be asked to set at rest.

The narrow scope of the powers of Cook County has already been commented upon. While counties could not, under the present constitution, be authorized to pay for improvements by special assessment, the general assembly might empower the county board to purchase or condemn land within or without the city limits for parks or other public uses, the cost to be paid from the proceeds of any bond issues which the people might see fit to vote within the five per cent limit of indebtedness. A park commission or forest-preserve commission, established as an administrative department of the county government, would be an appropriate agency for carrying out these objects.

The only park authorities now exercising any considerable jurisdiction within the city limits are the South Park Commissioners, the West Chicago Park Commissioners and the Commissioners of Lincoln Park, all of which were incorporated by the legislature in the year 1869 for the purpose of acquiring certain specific parks and boulevards. They have received additional powers from time to time. The West Chicago Park Commissioners, within whose jurisdiction the proposed Civic Center would lie, were authorized by the Act of 1869 to purchase or condemn the land described therein, and to levy special assessments for that purpose. The Act of April 9, 1879,[55] as amended, gives every board of park commissioners power to connect its parks or boulevards with any part of a city, town, or village by taking any appropriate street with the consent of the corporate authorities and of the owners of a majority of the frontage. In 1885 park boards were authorized to accept from municipal authorities any parks under their control.[56] The Act of May 10, 1901,[57] empowers every park board to acquire, by purchase or condemnation, as many small parks, not exceeding ten acres each, as it desires and can pay for.

By the Act of March 4, 1907,[58] even more extensive powers are conferred upon the commissioners of every public park district appointed or selected pursuant to any act which has been or may be submitted to the legal voters of such park district and by them adopted. Full power is given to purchase or condemn any land for the establishment of new parks or the extension of old parks, and, by vote of the people, to issue bonds to any desired amount within the constitutional limit. This act materially increases the powers of the boards to which it applies. The West Park board is within its terms; and may, upon favorable vote of the people of the district, bond itself up to the constitutional limit; and it can probably also levy special assessments under authority of the Act of June 24, 1895,[59] to pay for property condemned for park purposes.

Land for the proposed Civic Center might be acquired through any one of several agencies. The city of Chicago, if financially able, could purchase the necessary area, or condemn it and assess back part of the expense on real estate in the vicinity. Any portion of the cost not raised by special assessment would have to be defrayed from the proceeds of bonds, which, under the constitution, must be redeemable within twenty years, and must not increase the indebtedness of the city beyond five per cent of the assessed value of property therein. Additional borrowing powers may be conferred upon the city through consolidation of various local authorities with the city under the so-called charter amendment to the state constitution, or through a change in the statutory method of fixing the assessed valuation of property. Appropriate legislation should be enacted at once in order to make land thus acquired available not only for city buildings or park purposes, but for the location of the buildings of other public bodies, upon financial and other terms to be fixed by negotiation with the city.[60]

The county of Cook, though now lacking the necessary powers, might be authorized by the legislature to acquire, with the proceeds of a bond issue, the requisite area for the Civic Center, and to make appropriate arrangements for the location therein of federal and city buildings and other public edifices.

The West Park board might well be asked to treat the Civic Center as a legitimate object for the exercise of its functions, and with that end in view it should be invested by the legislature with powers adequate to the immediate acquisition of the land embraced in the proposed Civic Center, and should be authorized to arrange appropriate terms for the future occupation of part of the area by the buildings of other governmental and public bodies; among which terms might be the reimbursement of part of the original cost.

Among the agencies which might be created to carry out this and other features of the Plan should, perhaps, be mentioned a municipal corporation organized along the lines indicated by the forest-preserve legislation already alluded to. The Act of 1905[61] permitted cities and villages to be included in a forest-preserve district, and the city of Chicago was included within the boundaries of the proposed district the creation of which was submitted to popular vote. Section 6 of that act, providing for the designation of streets as pleasure driveways, specified that none of them should fall within any park district, and that no preserves should be within the limits of a park district. The legislature may have power to eliminate such restrictions, and to sanction the incorporation of a metropolitan board capable of exercising all the powers of a park commission within and without the city limits.

With reference to the proposed boulevard link on Michigan Avenue, connecting the north and south sides, it is to be borne in mind that the city under its general powers can enlarge Michigan Avenue to any desired width and can alter the grade of the whole or any portion of the street. There were, however, passed by the legislature May 25, 1907, four acts which were designed to facilitate the construction of this boulevard link. It was in contemplation at that time that the South Park and Lincoln Park boards would do part of the work and defray part of the expense, and that the city would meet the balance of the cost by annual appropriations extending over a series of years.

The first of these four acts[62] was designed to enable the South Park board to contribute such part of the expense as to it might seem best. This bill provides that the corporate authorities of any public park district having control of any park in a city wherein other park districts and parks are situated, but not connected therewith by any boulevard or driveway or other park thoroughfare, may from time to time in their discretion issue and sell additional bonds, not exceeding the five per cent limitation, in order to defray the expense of connecting any park under their control with any other public park or parks by means of a boulevard and driveway in the city, and altering and improving any connection or connections between such parks. Such bonds must, however, be authorized by the voters of the park district at an election.

By the second act,[63] the Lincoln Park board is authorized to issue, upon a favorable vote of the electors of the district, bonds not exceeding $1,000,000 for the purpose of constructing surface and elevated boulevards and the approaches thereto over or along streets and alleys, when authorized to do so by any city having control thereof.

The other two acts referred to were passed in order to dispel any doubt about the power of municipalities to erect an elevated structure in a public street. One[64] empowers any city to grant, by ordinance, to any board having jurisdiction over parks and boulevards the right to take and improve, by means of surface or elevated ways, a street not more than one mile in length, with all convenient or necessary approaches, inclines, and superstructures; while the other[65] confers power upon any city to construct and maintain an elevated way in any street, with all necessary approaches, inclines, and superstructures, and to authorize any commission or board having jurisdiction of a public park to take over, maintain, and control, upon terms fixed by ordinance, any street and any incline, approach, or superstructure therein.

An alternative method of constructing a surface or elevated boulevard link would be found in a proceeding by the city under the Local Improvement Act. The city has ample power to condemn property for widening the street and to assess the land damages against all property specially benefited thereby. Having thus added contiguous property to the street as a part thereof, the city could, under the enabling act already alluded to, if not under its general powers, construct the proposed improvement. It must be borne in mind, however, that even if the method of special assessment were resorted to in order to defray the cost, a substantial percentage of that cost would, no doubt, be designated by the court to be paid by the city as public benefits.

LAKE SHORE DEVELOPMENT

The treatment of the shore of Lake Michigan within the city limits involves comparatively little difficulty from a legal point of view. Ample legislation has been provided under which the Lincoln Park and South Park boards can extend their driveways and parks over the bed of Lake Michigan, subject to the consent of the Secretary of War. An Act of May 14, 1903,[66] expressly confers upon every board of park commissioners having control of any park, boulevard, or driveway bordering upon any public waters in the state the power to extend the same over the bed of such waters, and to connect two parks under their control by a boulevard or driveway over the bed of the water. Private riparian rights or titles may for such purpose be acquired by contract with or deeds from the owners, and may be paid for out of the general revenues of the park board. By Section 4, the title of the state to the submerged lands between the shore and the boulevard or parkway—in other words, the bed of the intervening lagoon—is granted to the board of park commissioners. Several other statutes on this subject were enacted on the same date. One authorizes the South Park Commissioners to extend any park under their control out into the lake over the adjacent submerged lands;[67] another conveys to the South Park Commissioners Grant Park from Randolph Street to Park Row, together with the submerged lands lying between those streets extended east to the harbor line established by the Secretary of War;[68] another grants to the South Park Commissioners title to all submerged and artificial lands between the south boundary of Jackson Park and the south line of Seventy-ninth Street extended one thousand feet into Lake Michigan, and to the land included within a triangle formed by the shore of Lake Michigan, the extension of Ninety-fifth Street and the extension of the state boundary line.[69]

This legislation did not authorize the condemnation of riparian rights, but only the acquisition of such rights by negotiation. To facilitate settlement, an Act passed May 2, 1907,[70] empowered the park commissioners, with the approval of the Circuit Court, to agree with the riparian owners upon a boundary line between the public park and the private shore lands, and to convey to the riparian owners all submerged land lying inside of the boundary line thus fixed by agreement; in other words, the park board, having received from the state a grant of its title to the bed of the lake, is authorized to sell and convey to the shore owners so much thereof as may be necessary to induce them to release their riparian rights. If any shore land is owned by persons who are incompetent to contract or who are unknown, the power is given to condemn their riparian rights, pursuant to the provisions of the statute of eminent domain. That power should not be limited to the lands of unknown or legally incompetent owners. Under this legislation, the park board has power to build a boulevard far out into the lake and to settle with the riparian owners by conveying to them as wide a strip of the submerged lands as may be deemed expedient; and the shore owners will then have the right to fill in such submerged strip, thus adding extensive areas of valuable shore land to their present holdings. The constitutionality of this legislation is virtually settled by the case of _People_ v. _Kirk_, 162 Ill. 138, sustaining a similar arrangement between the Lincoln Park board and the proprietors of the shore south of Oak Street. The Lincoln Park board has been given power to condemn shore lands and riparian rights under an amendment of Section 2 of an act passed June 15, 1895, and court proceedings are authorized for the establishment of the boundary line between the park lands and the lands of private owners.[71]

The right of the state to authorize structures which might interfere with navigation is subordinate to the paramount control of the War Department of the United States; and the improvements contemplated by the legislation last described cannot be carried out without the consent of the Secretary of War. Proceedings looking to a grant of such consent were temporarily stayed by the remonstrance of Mayor Busse, and the appointment by him, under authority of the city council, of the Chicago Harbor Commission, which has made a comprehensive study and detailed report on the harbors of the city, together with recommendations as to harbor, railway terminal, and park plans along that part of the shore of Lake Michigan between Twelfth Street and Jackson Park. The report is entirely favorable to the essential features of the plan for park and boulevard development on the Lake Front, but with appropriate reservations for future harbor development. It strongly favors the accomplishment of such plans at the earliest possible moment, stating that “there is no real conflict between the harbor and the park interests of Chicago and no artificial or unnecessary discord should be permitted to retard the complete and prompt execution of the plans necessary for the development of both sides of the city’s life.” It recommends that “a detailed plan carrying out this idea should be worked out jointly by the experts of the park authorities and an expert engineer appointed by the city, subject to the approval of the city council and the South Park Commissioners,” and urges immediate action by these authorities. As soon as such a plan can be worked out and the consent of the War Department be secured, there is nothing but the question of ways and means to delay the execution of this plan. The legislature has already authorized the South Park board, upon obtaining authority from the people at an election, to issue bonds up to the constitutional limit for the construction of the Lake Front Park.[72]

TRANSPORTATION PROBLEMS

The readjustment of freight and passenger traffic and the relocation of railroad terminals is a subject which requires little comment from a legal point of view. When railway companies are brought to the point of hearty co-operation with the Chicago Plan, the powers which they already enjoy will be found adequate to the execution of their part. The state has placed at their service all necessary powers of eminent domain, and those portions of streets and alleys required for railway terminals may be vacated by the city. Although the action of the city council in vacating streets to make room for a railway station has been attacked, it has been sustained by the lower courts.

It may be that the legislature should be asked to confer upon the city additional powers that would enable it to acquire property for railway terminals and appropriate connections to be used by the various transportation lines on just terms. A city cannot condemn land for the purpose of turning it over to a railway corporation, but there can be little doubt of the power of the legislature to authorize a city to condemn land in order to create a central clearing place for traffic. Chapter 247 of the Acts of the legislature of Wisconsin for the year 1907 is an example of a law designed for that end. This statute authorizes cities of the first class to acquire, establish, own and operate railway terminals, and to condemn land for that purpose. Having established such a terminal, the city may permit any railroad corporation to use it upon agreed terms, or, if the parties cannot agree, then upon terms to be fixed by the state railroad commission. To meet the first cost, the city is authorized to issue “railway terminal certificates,” payable only out of the revenues derived from the terminals for the acquisition of which they are issued. These certificates may be secured by trust deed, and there are provisions for foreclosure similar in many respects to those contained in the so-called “Mueller Law” enacted by the legislature of Illinois, authorizing municipal ownership of street railways. Under the decision of the Supreme Court of Illinois,[73] such certificates would constitute “indebtedness” of the city, and the amount which could be issued at any time would be controlled by the constitutional limitation of municipal indebtedness. That municipal certificates or bonds secured by revenue-producing utilities and not made a charge upon the other property or general credit of the city should be exempted from the general constitutional debt limit is advocated by men of widely different opinions upon the public-utility question,[74] and is provided in various state constitutions.[75] Constitutional amendments to this effect are being proposed in New York and elsewhere.

CONTROL OF LANDS ADJACENT TO PUBLIC IMPROVEMENTS

In order to secure the full benefit of a park, boulevard, avenue or other place of public recreation or resort, some control of the immediate surroundings is indispensable. The municipal authorities which establish parks, boulevards, and other public places need some power to regulate the use of premises within immediate view of the public grounds, so as to prevent offensive advertising, restrict the kinds of business, if any, to be conducted thereon, and make appropriate regulation of the height, manner of construction, and location of the surrounding buildings. To that end, resort must be had either to the police power or to the power of eminent domain.

The police power of the state is not available for merely æsthetic purposes, and is quite inadequate to the solution of this special problem. Owners of land, under existing constitutional limitations, can with impunity lease to advertising companies the right to erect safely constructed billboards and paint the sides and roofs of barns with any advertisements not injurious to morals or contrary to public decency; nor can vulgarities which merely offend the sight and shock temperamental susceptibilities be construed as breaches of decency. “It is believed,” says a writer in the Harvard Law Review,[76] “that both on theoretical and practical grounds the law must be taken as settled that, although public æsthetic ends may be effectuated by statute or ordinance through the exercise of eminent domain, the same object may not be accomplished by legislation under the police power without compensation.”

In the case of _Chicago_ v. _Gunning System_, 214 Ill. 628, the Supreme Court of Illinois declared that the legislature, by conferring authority upon the city council to abate nuisances and enforce police ordinances, had given that body ample power to regulate, within reasonable limits, the construction of billboards upon private property; but the court nevertheless condemned a particular ordinance for the reason, among others, that the purpose of certain sections seemed “to be mainly sentimental and to prevent sights which may be offensive to the æsthetic sensibilities of certain individuals residing in or passing through the vicinity of the billboards.”

A broader control may, however, be exerted under the power of eminent domain. It is possibly within the capacity of the legislature to authorize park boards or other governmental bodies to acquire by condemnation proceedings, upon payment of compensation, the right, even in country districts, to restrict the use of all land within view of a driveway or park; but the exercise of that power with respect to property which does not actually front on the park or driveway scarcely falls within the domain of practical consideration in connection with the present Plan.

Nearer the center of urban population, where the billboard nuisance is even more aggravated, the city is now the only effective repository of the police power. The county is not at present a factor in the problem; and park boards, while they have adequate police jurisdiction in their own territory, have none outside. It is competent for the city council, in the exercise of the police power, to regulate the construction of advertising signs for the protection of public decency or public safety by reasonable ordinances, but not to prohibit them altogether, nor restrict their size, construction, or location more than is reasonably necessary to keep them within the limit of safety; nor could land abutting upon parks and boulevards be subjected to substantially different regulations in this respect from those imposed upon property fronting on business streets. In the case of _Chicago_ v. _Gunning System_, already adverted to, a provision forbidding the erection of billboards on residence streets without the consent of residents in the block was condemned by the court as “an arbitrary restriction on the part of the city, depriving an individual property owner of the use of his property as he may choose, without any showing that such use would be injurious to others in the same vicinity.” The city council cannot condemn as a nuisance what the law adjudges not to be a nuisance. In order, therefore, to control offensive advertising by such regulations as the city ought to have power to impose, resort must be had to some other function of government than the police power.

The construction of buildings is also subject to some regulation under the police power. The city is vested with authority to prescribe the strength and manner of constructing buildings, to define fire limits, and to pass and enforce all necessary police ordinances; and the power conferred upon it to pass “all necessary police ordinances” is construed as delegating to the city all the appropriate police power of the state.[77] No question is made but that the city council has power to regulate the height of buildings with a view to health and public safety; but it may be doubted whether the police power would justify the municipal authorities in imposing more rigorous restrictions upon the character of buildings to be constructed along boulevards and around parks than in other parts of the city. The Supreme Judicial Court of Massachusetts has sustained the right of the legislature to delegate to a city the power to regulate the height of buildings, to prescribe different regulations for different districts, and to invest a commission with the right to determine the boundaries between such districts,[78] and has expressed the opinion that certain special regulations of the height of buildings around a public square might be imposed under the police power without making compensation.[79] It is doubtful whether local distinctions of this character would be sustained in Chicago under existing legislation, except in so far as they might be justified by the power to establish fire limits. The legislature might delegate to city councils the power to district the city and prescribe different building limits in different districts; but any distinctions of this sort would have to rest upon real differences, and it remains doubtful whether the police power could be invoked to justify making a special district of the area surrounding a public square or avenue. The council could not be invested with authority to establish building lines without awarding compensation to the owner;[80] nor could the legislature confer the right to regulate arbitrarily the character of the business to be conducted in premises abutting on a boulevard.[81] A business which is an actual nuisance may be prohibited altogether; and the legal machinery exists for excluding saloons and some other kinds of business from limited areas. Such exercise of the police power must, however, bear some reasonable relation to the public health, safety, or morals, and could not, under existing constitutional restraints, be extended to business in general.

Such being the limits of the police power, it is evident that, in order to secure any effective control of the environs of a public place, resort must be had to some authority of wider scope, and the only available power is that of eminent domain, under which the state and its agencies have the right to take any private property for a public use, upon providing just compensation. The areas adjacent to a public place could probably be controlled under this power, either by condemning them outright as a part of the improvement, or by condemning merely a qualified right to regulate and control them. If they were taken outright, the question would arise whether they could be resold subject to the necessary restrictions upon their future use; thus reducing the cost of the improvement to the extent of the increase in the value of this land caused by the improvement.

The right to appropriate private property for public use is an attribute of sovereignty, existing in the state independently of written constitutions, and vested in the general assembly by those provisions of the constitution which confer upon that body the legislative power of the state. In Illinois, as in all of the states, the power of the legislature to take private property for the use of the community is subject to two constitutional limitations: one, that just compensation must be provided for all property so taken; the other, that private property cannot be taken, even upon payment of its full value, for any except a public use. These two restrictions are also imposed by the fourteenth amendment of the federal constitution, which declares that no state shall deprive any person of property without due process of law. Subject to these qualifications, the state has unlimited power to appropriate through its legislature any property within its borders which has become the subject of private ownership; and this power of eminent domain the legislature may delegate, with or without restrictions, to any subordinate agency. The expediency of the exercise of that power in any given case is a subject over which the courts have no control, unless they can say that the proposed use is not public. On these general principles all the authorities are agreed.

The United States Supreme Court has frequently stated the principles of the law of eminent domain. In _Boom Company_ v. _Patterson_, 98 U. S. 403, Mr. Justice Field, in delivering the opinion of the court, said:

“The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition: it is an attribute of sovereignty. The clause found in the constitutions of the several states providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested.”

Parks, boulevards, and places of recreation are now universally recognized as legitimate objects of public concern, for which the power of eminent domain may appropriately be exercised; and it seems clear that if private property can be taken to create such utilities, it may also be taken for the purpose of realizing the full benefit of these works by adequate control of the surroundings. The legislature might at least authorize a city, park district, or other subordinate agency to exercise the power of eminent domain by imposing upon property in the neighborhood of a public place restrictions upon the location or character of the buildings to be erected, or the kinds of business, if any, to be conducted upon such adjacent land. It could not be successfully argued that such a use was not public.

The conception of a public use must alter and expand with the development of civilization, and especially with the growth of cities. In sustaining an act of Congress providing for the condemnation of land for a public park in the District of Columbia, and assessing part of the cost upon the property specially benefited, the Supreme Court, in the case of _Shoemaker_ v. _United States_, 147 U. S. 282, 297, speaking through Mr. Justice Shiras, said:

“In the memory of men now living, a proposition to take private property, without the consent of its owner, for a public park, and to assess a proportionate part of the cost upon real estate benefited thereby, would have been regarded as a novel exercise of legislative power. It is true that, in the case of many of the older cities and towns, there were common or public grounds, but the purpose of these was not to provide places for exercise and recreation, but places on which the owners of domestic animals might pasture them in common, and they were generally laid out as part of the original plan of the town or city. It is said, in Johnson’s Cyclopedia, that the Central Park of New York was the first place deliberately provided for the inhabitants of any city or town in the United States for exclusive use as a pleasure ground for rest and exercise in the open air. However that may be, there is now scarcely a city of any considerable size in the entire country that does not have, or has not projected, such parks. The validity of the legislative acts erecting such parks, and providing for their cost, has been uniformly upheld.”

Again, in the case of _Attorney General_ v. _Williams_, 174 Mass. 476, the Supreme Judicial Court of Massachusetts used the following language:

“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. It is only within a few years that lands have been taken in this country for public parks. Now the right to take land for this purpose is generally recognized and frequently exercised.... The grounds on which public parks are desired are various. They are to be enjoyed by the people who use them. They are expected to minister not only to the grosser senses, but also to the love of the beautiful in nature, in the varied forms which the changing seasons bring. Their value is enhanced by such touches of art as help to produce pleasing and satisfactory effects on the emotional and spiritual side of our nature. Their influence should be uplifting, and, in the highest sense, educational. If wisely planned and properly cared for, they promote the mental as well as the physical health of the people. For this reason it has always been deemed proper to expend money in the care and adornment of them, to make them beautiful and enjoyable. Their æsthetic effect never has been thought unworthy of careful consideration by those best qualified to appreciate it. It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed, and whose love of beauty is being cultivated.”

When once it is conceded that a use is public, the courts have no control over the character of the estate or easement to be taken for the purpose. The constitution of Illinois provides, indeed, that when a railroad company condemns a right-of-way the fee shall remain in the former owner; but, subject to that restriction as to these particular corporations, the legislature has unlimited power to specify the nature, extent, and duration of the estate that shall be taken for any public use. Having the right to authorize the taking of an absolute title, it could direct the appropriation of any lesser interest, and could confer upon public bodies power to condemn the right to restrict the use and improvement of property contiguous to public grounds.

It does not appear, however, that the present statutes of Illinois do confer upon municipalities any express power to condemn such easements over lands contiguous to a street, boulevard, park or other public place. In the legislation under which the West Chicago Park Commissioners were incorporated and organized, there were sections expressly directing the park commissioners to impose building lines upon property adjacent to the parks and boulevards authorized thereby, and in the condemnation proceedings compensation was to be included for this burden. The West Park board, however, never undertook to avail itself of these extensive powers, which were limited to the acquisition of the original parks and boulevards authorized by the act. It might be argued that the city, under its present authority to establish and enlarge parks, boulevards, and streets, could condemn such easements directly, or that it could condemn a wide strip for a new street or land contiguous to an old street, and, by the familiar device of a stipulation entered of record in the condemnation suit, limit the appropriation to a restricted control of the use of the property. The latter method, if lawful, would be clumsy and inadequate, and additional legislation would be desirable to enable public authorities effectively to acquire, under the power of eminent domain, a qualified jurisdiction or control over property of which the exclusive use is not taken.

Even such a law, however, would fall short of the public need. To give the city or other agency a free hand in controlling the environs of a public place, the authorities should be invested with power to acquire the actual title, and then to dispose of it subject to such restrictions as might be deemed expedient. This course offers the double advantage of giving the public agency absolute control of the future use and improvement of the surrounding property, and of enabling it, if the price of acquisition is not too great, to recoup in some measure the cost of the improvement by selling the residual title. A lot abutting on a park or boulevard might be worth much more after it had become part of a larger area subject to uniform building lines and restrictions than it was in its unencumbered condition; and the public authorities, by treating the whole improvement and its environment as a unit, might reap a pecuniary advantage which they could not have conferred upon individual owners even if they had desired to do so. An examination of the power of municipalities to take land in excess of physical requirements involves two questions: first, whether extra land can be taken merely for the purpose of selling it and defraying the cost of the improvement; and, second, whether, even if that right is denied, such land can be condemned and resold for the purpose of imposing upon it building or sanitary restrictions and limitations of use.

As already stated, it may be accepted as elementary that neither the state, through its legislative department, nor any subordinate agency of the state can take a man’s property against his will, under the power of eminent domain, merely for the purpose of giving it or selling it to another man. Such a taking would not be for public use and would violate the state and federal constitutions. It by no means follows, however, that a state agency, exercising the power of eminent domain, is always forbidden to derive profit from the sale of property not found to be actually needed. The activities of the Sanitary District of Chicago suffice to show how an area larger than is demanded by the ultimate needs of the public work may be acquired and converted into a source of revenue. A municipal corporation enjoys a large discretion in determining for itself how much land it needs for its public works, and courts will not ordinarily curb its freedom of action unless the exercise of the power of eminent domain is clearly excessive. If the city council saw fit to condemn a strip of land five hundred feet wide for an avenue or boulevard, the courts would have no right to question its decision unless, in the particular instance, there was some “manifest injustice, oppression or gross abuse of power”;[82] nevertheless, if it did clearly appear as a fact that the ultimate object was to lay out an avenue only one hundred feet in width, the question would be squarely presented whether the margins on each side could be taken outright in order to govern their future use and development.

In an early New York case, a legislative attempt to authorize the taking of more land than was actually needed was condemned by the court in the following language:

“This power has been supposed to be convenient when the greater part of a lot is taken, and only a small part left not required for public use, and that small part of but little value in the hands of the owner. In such case the corporation has been supposed best qualified to take and dispose of such parcels, or gores, as they have sometimes been called; and probably this assumption of power has been acquiesced in by the proprietors. I know of no case where the power has been questioned and where it has received the deliberate sanction of this court. Suppose a case where only a few feet or even inches are wanted from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot, would the power be conceded to exist to take the whole lot, whether the owner consented or not? Or suppose the commissioners had deemed it expedient and proper in this case, in the language of the statute, to take the whole of the churchyard, the act would have been equally within the letter of the statute with their act in the present case; and yet no one would suppose that the legislature ever intended to confer such a power. The quantity of the residue of any lot cannot vary the principle. The owner may be very unwilling to part with only a few feet; and I hold it equally incompetent for the legislature thus to dispose of private property, whether feet or acres are the subject of this assumed power. I am clearly of opinion that the commissioners have no right to take the strip of land in question against the consent of the corporation of Trinity Church.”[83]

While there is a dearth of modern authority on this subject, it is believed that the courts would still accept the reasoning of this Albany Street case, and would sustain the position of an owner who refused to surrender his property in order merely to diminish the cost of a public improvement. Such enactments, however, though void as to an unwilling property owner, are valid in so far as they confer authority on the city to take and pay for the whole parcel with the owner’s consent, and to spend the people’s money for that purpose.[84] A plan for acquiring a large area by private purchase could not be successfully carried out if one or two of the proprietors could refuse to part with their property, and such a scheme must therefore be confined within the limits of the power of eminent domain.

In order to justify the appropriation of a zone outside of the actual lines of the public space, it must appear that the property is to be made, in some sort, a part of the improvement; and that fact does appear when the control of the debatable zone is sought in order to save the environment of the public place from disfigurement or objectionable use. That end suffices to justify the condemnation of some interest in the zone; and it is well established by the authorities that when the public good requires the appropriation of some interest, the legislature is sole judge of the particular nature of the interest that shall be taken, and may, without being answerable to any court, declare that the interest to be taken shall be a fee simple absolute. A railway company does not require the title, or even the exclusive use, of its entire right-of-way; yet it is not doubted that, in the absence of a constitutional restriction, the legislature might authorize a railway company to take the entire title. In most states, the fee of a street remains in the owner of the property over which the street is laid out under the power of eminent domain; yet there is no question but that the legislature has power to vest the fee in the city. The Supreme Court of Minnesota, in the case of _Fairchild_ v. _St. Paul_, 46 Minn. 540, where the question was raised whether the city acquired through condemnation proceedings the actual title to the street or only an easement, stated the established principles of the law in the following language:

“There is nothing better settled than that, the power of eminent domain being an incident of sovereignty, the time, manner and occasion of its exercise are wholly in the control and discretion of the legislature, except as restrained by the constitution. It rests in the wisdom of the legislature to determine when and in what manner the public necessities require its exercise; and with the reasonableness of the exercise of that discretion the courts will not interfere. As the legislature is the sole judge of the public necessity which requires or renders expedient the exercise of the power of eminent domain, so it is the exclusive judge of the amount of land, and of the estate in land, which the public end to be subserved requires to be taken. * * *

“When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. Consequently, if in the legislative judgment it is expedient to do so, it has the power expressly to authorize a municipal corporation compulsorily to acquire the absolute fee simple to lands of private persons condemned for street or any other public purpose. The authorities are so numerous and uniform to this effect that an extended citation of them is unnecessary. * * * It is often laid down as the law that the taking of property must always be limited to the necessity of the case, and, consequently, no more can be appropriated in any instance than is needed for the particular use for which the appropriation is made. But it will be found that this is almost invariably said, not in discussing the extent of the power of the legislature, but with reference to the construction of statutes granting authority to exercise the right of eminent domain, and where the authority to take a certain quantity of land or a particular estate therein depended, not upon an express grant of power to do so, but upon the existence of an alleged necessity, from which the disputed power is to be implied.”

The city of Brooklyn acquired land for public parks under a statute authorizing the acquisition of the title, and the court, in sustaining the validity of a subsequent act of the legislature authorizing the sale of portions of the land no longer needed, said:

“Doubtless, in most cases, when land is condemned for a special purpose on the score of public utility, the sequestration is limited to that particular use. But this is where the property is not taken, but the use only. Then, the right of the public being limited to the use, when the use ceases the right ceases. Where the property is taken, the owner paid its true value, and the title vested in the public, it owns the whole property, and not merely the use; and though the particular use may be abandoned, the right to the property remains.”[85]

Land acquired for canal purposes has often been held to have vested absolutely in the state, so that upon abandonment of the canal the premises could be devoted to a different use or sold to a private purchaser.[86]

Some courts have intimated that land condemned for park purposes is presumptively dedicated to that use forever; and, hence, that authority to condemn for such a use implies authority to take the absolute title. Moreover, if a statute provided that land acquired for a public purpose could be sold when no longer needed, the implication would seem to be unavoidable that the title acquired under the statute was absolute. No general authority, however, has as yet been conferred upon municipalities in this state to take under the power of eminent domain a title that would survive the public use.

Under appropriate legislation, then, a city could take the absolute fee to any property in which it required an interest for the public use. It is equally well settled that the legislature can authorize the sale of any such land when it is no longer needed for the purpose for which it was acquired. The property, it is true, is held in trust for the public, but that trust could be relinquished by authority of the legislature, which represents the public, and the property could then be sold; and the authority to sell such surplus when no longer needed could be contained in the act authorizing the original condemnation. Of such a statute it was said in _Matter of City of Rochester_ 137 N. Y. 243:

“It is claimed that this provision is in conflict with the provisions of the constitution respecting the taking of private property for public use, as it in fact authorizes the city to take it for a purpose not public. We think the objection is without merit or substance. Of course, the city could not take private property for the purpose of selling it or dealing in it; but, having once acquired it for a park, and it becoming, in the course of time, unnecessary or useless for that purpose, by the growth of the city or other changes in the situation, a sale in the manner prescribed by the statute would be within the legitimate functions of the city as a municipal corporation, and power to that end, conferred by the legislature at any time, or in the act authorizing the taking, cannot invalidate the delegated right to exercise the power of eminent domain.”

The power of the municipality to sell superfluous land under the authority of such a statute could not be challenged at the time of sale. If the title had been acquired, it could be sold. The only question that could be raised would be one in the original condemnation proceeding as to the power to take the land at all. That question would be merely the question of good faith. The petitioner could be made to file plans showing some reasonable need for the property sought to be condemned; and the courts would not permit an obvious abuse of the power of eminent domain either by the state legislature or by any of its agencies. It is believed, however, that no question of abuse or bad faith could arise when the legislature was shown to have authorized, in its sovereign discretion, the taking of the whole title as the most direct and convenient method of controlling the use.

An instructive case bearing upon this argument is that of _Dingley_ v. _Boston_, 100 Mass. 544. For the purpose of draining and grading up a part of the Back Bay district, the Massachusetts legislature authorized the city of Boston to take land within a certain area, and provided that the title should vest in the city. The contemplated use, although extensive, was merely temporary; when the land was filled and the surface raised to a higher grade, the purpose for which it was taken would have been accomplished. The Supreme Court, nevertheless, holds that it was the object of the statute to authorize the taking of a fee simple absolute, and that after the filling had been completed the title remained in the city, subject to such use or disposition as the authorities might deem expedient. The use being public, it could not be said that the taking of a fee simple was any the less for public use than the taking of a smaller estate would have been; the legislature was sole judge of the expediency of taking one or the other. The court speaks as follows:

“The act provides that the city government may first take the land, and thereby transfer to the city a title in fee simple, without the consent of the owners. It is contended that, as the only object of the act is to abate a nuisance, the act ought only to have granted the power to occupy the land temporarily until the object of the act should be effected, and it should then be restored to the owners, with a provision that the benefit done to the land should be applied in offset to the damages. It is true that the raising of the grade does not require an occupation of the land for a great length of time. When this work is completed the nuisance will be abated, and the land will be in a condition to be occupied by private persons. But its condition will be greatly changed; almost as much so as raising flats into upland. The former surface will be deeply buried under the earth that will have been brought upon it, and the changed condition is to be perpetual. If the old property is restored, the new property which has been annexed to it must go with it. This would be very unjust to the city, who have been compelled to incur the great expense of destroying the nuisance, unless the owner were required to make a reasonable compensation, which might be far beyond the amount of the damages to which he would be entitled.

“It would be difficult to adjust the matter; and in many cases it might operate harshly upon the owner to compel him to take and pay for the improvements. On the whole, therefore, the plan of compelling the city to take the land in fee simple, and the owner to part with his whole title for a just compensation, would seem to be the most simple and equitable that could be adopted; unless there is some objection on the ground that a fee simple is more sacred than an estate for life or years, or than an easement of greater or less duration. We can see no ground for regarding one of these titles as more sacred than another, or for regarding land as more sacred than personal property. * * *

“Whether land be taken under the clause authorizing the making of wholesome and reasonable laws, or by virtue of the clause authorizing the appropriation of private property to public uses, it must in either case be left to the legislature to decide what quantity of estate ought to be taken in order to accomplish its purpose, and do the most complete justice to all parties.”

If a municipality were justified in taking an area in order to control the surroundings of a park or boulevard, the proceeding would not be rendered illegal by the fact, if fact it was, that the hope of pecuniary profit was a strong, or even the controlling, motive. If there is a sound basis which justifies the action of public officials, the motive by which those officials are actuated is not open to judicial inquiry.[87]

If, then, it be a legitimate part of a public improvement—as few would question that it is—to impose appropriate restrictions upon the use and improvement of adjacent property, and if, as seems probable, the condemnation of the entire title can be authorized for that purpose, a municipal body could be empowered by the legislature to acquire title to land outside of the physical area of improvement; and if the municipality had also been authorized by the legislature to sell any interest no longer needed in any of its land, it could sell the land subject to all necessary conditions or restrictions; nor would it lie in the mouth of any court to question the proceeding or brand it as illegal because the real, efficient motive may have been to get the benefit of the enhancement in the value of the property.

There is probably no constitutional obstacle to legislation investing a city, park board, county, or other appropriate agency with power to condemn as part of or supplementary to a public improvement such contiguous area as the reasonable needs of the improvement itself might require to be subjected to proper restrictions; nor could such a law be condemned by reason of its also authorizing the sale of the land subject to such conditions or restrictions as the public authorities saw fit to impose upon it.[88]

If any local legislation authorizing the condemnation and sale of surplus lands were brought to the test, the question for the courts would be whether the use for which the property was taken was a public one; and it must be borne in mind that upon this point the judgment of the Supreme Court of a state would not be final. By the Fourteenth Amendment to the Constitution of the United States it is provided that no state shall deprive any person of property without due process of law; and it is now settled that this clause prohibits the taking of private property for any use that is not public. The United States Supreme Court, however, has always paid the greatest deference to the opinions of state legislatures and the state judiciary as to what uses are public. The power of the United States Supreme Court to review a state decision in this particular, and also the extreme respect which will be paid to local decisions, are both well illustrated in the case of _Clark_ v. _Nash_, 198 U. S. 361, sustaining a statute of the state of Utah, by the terms of which an individual land owner was empowered to condemn the right of conveying water in a ditch across his neighbor’s land for the purpose of irrigating his own farm. Mr. Justice Peckham, delivering the opinion of the court, said:

“In some states, probably in most of them, the proposition contended for by the plaintiffs in error would be sound. But whether a statute of a state permitting condemnation by an individual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and therefore a valid enactment, may depend upon a number of considerations relating to the situation of the state and its possibilities for land cultivation, or the successful prosecution of its mining or other industries. Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the state, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such condemnation. * * *

“We do not desire to be understood by this decision as approving of the broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural resources of the state. We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of the opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining the water for an individual, where it is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained.”

Again, in the very recent case of _Hairston_ v. _Danville & Western Railway Co._, 208 U. S. 598, the facts were that the Supreme Court of Virginia had sustained a proceeding by which a railroad condemned land for a spur track to a tobacco factory, the owner of which agreed to reimburse the company for the cost of acquiring the land. The decision of the federal court sustaining the judgment of the state court was delivered by Mr. Justice Moody, who said:

“When we come to inquire what are public uses for which the right of compulsory taking may be employed, and what are private uses for which the right is forbidden, we find no agreement, either in reasoning or conclusion. The one and only principle in which all courts seem to agree is that the nature of the uses, whether public or private, is ultimately a judicial question. The determination of this question by the courts has been influenced in the different states by considerations touching the resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people. In all these respects, conditions vary so much in the states and territories of the Union that different results might well be expected.... No case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses in conformity with its laws.... We must not be understood as saying that cases may not arise where this court would decline to follow the state courts in their determination of the uses for which land could be taken by the right of eminent domain. The cases cited, however, show how greatly we have deferred to the opinions of the state courts on this subject, which so closely concerns the welfare of their people. We have found nothing in the Federal Constitution which prevents the condemnation by one person for his individual use of a right of way over the land of another for the construction of an irrigation ditch; of a right of way over the land of another for an aerial bucket line; or of the right to flow the land of another by the erection of a dam. It remains for the future to disclose what cases, if any, of taking for uses which the state constitution, law and court approve will be held to be forbidden by the Fourteenth Amendment to the Constitution of the United States.”

It thus appears that it would require an extreme case of manifest abuse of the power of eminent domain to lead the Supreme Court of the United States to condemn as private a use which a state legislature had recognized as public, and which had been sustained by the Supreme Court of the state. If the abuse of power were manifest, the United States courts would not hesitate to condemn the proceeding, even though expressly sanctioned by the constitution of a state; but there is every reason to believe that any method of taking and selling land justified by the reasonable purpose of controlling the environs of a public place would withstand the scrutiny of the United States Supreme Court if sanctioned by the legislative and judicial departments of the state government.

In concluding this topic, some experiments made in other states towards taking more property than was demanded by the physical requirements of an improvement, either to control the environs or for mere pecuniary considerations, may be passed briefly in review. The experience of foreign countries need not be recounted here, since some governments, unlimited by constitutional restrictions, have conducted real estate transactions of a wide range, far beyond anything that could reasonably be contemplated in America. The State of New York had upon its statute books early in the last century an act already adverted to, purporting to authorize municipalities to take all of a connected tract of land when only part was needed and to sell the surplus. This statute was adjudged by the courts to be unconstitutional, in so far as it sought to authorize the taking, against the owners’ consent, of land not actually needed. A resolution, however, has, after many years, been introduced (January 27, 1909), in the senate of the State of New York for the submission of a constitutional amendment in the following language:

“When private property shall be taken for public use by a municipal corporation, additional adjoining or neighboring property may be taken, under conditions to be prescribed by the legislature by general law. Property thus taken shall be deemed to be taken for public use.”

In Massachusetts, Section 4 of Chapter 50 of the revised laws provides that the owner of abutting land liable to assessment may at a certain stage of the proceedings give notice that he elects to surrender his land; in which event the board may, if it thinks expedient, take the whole parcel at its estimated value, and any part not required may be sold. A somewhat similar statute, authorizing an owner to convey to the city his entire property at its appraised value when part of it was taken for widening a street, was involved, and by implication sustained, in the case of _Dorgan_ v. _Boston_, 12 Allen, 223.