288. Police Power. Of these restrictions the most important are contained in clauses, found in the constitutions of the United States and of every state, to the effect that no person's property shall be taken, or applied to public use, without just compensation-a provision which in three states' includes personal service also. It is universally held that private property cannot be condemned except for a public purpose. Over against these limitations upon the city's control over private property is the police power which, like eminent domain, the state shares with its cities. Under the police power a use of land by private persons in a way definitely subversive to public health, safety and morals, and to some extent, public convenience and comfort, also, may be prevented as a nuisance; the question of compensation does not enter in." Insofar as its right of eminent domain is not taken away, the city's power to take title to any land-and consequently to use it as it pleases in carrying out the city plan-is unimpaired; insofar as its police power may be extended to particular uses of property the city can control it in accordance with its desires and so in furtherance of whatever plan it may have adopted. In executing their plans, however, cities have found both their eminent domain and police power privileges, as they at present exist, not sufficiently broad to permit the accomplishment of even genuinely needed, much less merely desired, ends. They have found themselves cramped by constitution and by court decision in not a few of their methods when they have sought so to arrange their streets, protect their parks and improve their housing conditions as to achieve the maximum civic efficiency and the highest individual welfare of the citizens. Fortunately the law as well as the thoughts of the planners is subject to evolution and is gradually altered to meet the changing wishes of the people. Ind., Ore., Tenn. See Lewis, Eminent Domain, 3d Ed., sec. 2500. Some constitutions authorize condemnation for what would otherwise be a private use, as for private roads, or that drains may be constructed across others' land. e. g.. Miss., IV, 110; Fla.. XVI. 28. In Mich. (XIII, 4), private property may be taken for the use of the state university. Private corporations, as railroad companies, may be authorized by the legislature to condemn property for the "public" use of their building a railroad. Ernest Freund, The Police Power, sec. 511ff, discusses the differences between the police power and eminent domain, citing cases. City and the Municipal Some elements of a city's plan may of course be achieved 289. merely by the more perfect exercise of its powers to control its Planning own previously acquired property. In granting franchises for Control of the use of its streets it may make what stipulations it pleases Property. relating to the esthetic character of posts, cars and other things. which will appear upon them, and, since it cannot contract away its police power,' it may control, in the interest of health, safety and morals of the community, the use of the franchise, irrespective of the terms of its grant. Furthermore, it may exclude advertising from its streets and parks and from public vehicles traversing them and business traffic from its boulevards; and it may convert business streets into pleasure drives." It may refuse to accept streets and parks laid out by land companies in defiance of its plans, or can even require them to follow those plans. In Pennsylvania a city may require a house built within the lines of streets that have been established on the official city plan to be removed by the owner without compensation when the street is constructed." City Plan the Police The city may, furthermore, under its police power, limit the 290. height of buildings and may divide itself into zones providing ning and different regulations for the buildings in each. Such regula- Power. tions rest upon the safe basis of protection of the city from fire or the health of the people from overcrowding or the loss of fight and air. A different question is raised when, merely for the sake of preserving residence districts from the influx of corner drug stores or millinery shops, the city passes an ordinance forbidding any kind of business to invade streets which it sets apart for residential purposes. Certain kinds of undertakings-a brick yard, for instance, or a factory emitting dense 1Freund, The Police Power, sec. 362 and 575. 2Chicago v. Union Traction Co., 199 Ill., 259 (1902). See Dillon, Municipal Corporations, sec. 1274 and cases cited. On this point see Edgar, R. A., Legal Aspects of Municipal Aesthetics, 18 Case and Comment, 360; also, 21 L. R. A. (N. S.), 735. Fifth Ave. Coach Co. v. City of New York, 194 N. Y., 19 (1909). Cicero Lumber Co. v. Cicero, 176 Ill., 9; Brodbine v. Revere, 182 Mass., 598; Guttery v. Glenn, 201 Ill.. 275. *See Shurtleff, op. cit., ch. 6. In re District of Pittsburg, 2 W. and S., 320; also 70 Pa. St., 125; 166 Pa. St. (Bush v. McKeesport). Contra, weight of authority, e. g., Foster V. Scott, 136 N. Y., 577; Edwards v. Bruorton, 184 Mass., 529. 359. Welch v. Swasey, 193 Mass., 373; affirmed, 214 U. S., 91. ib., see also Cochran v. Preston, 108 Md.. 220 (1908). 1Ex parte Hadacheck, 132 Pac., 589 (Cal.) See also 111 N. Y., 291. Zones. 292. Billboards. smoke-may, indeed, be abated as a nuisance, but the courts. have not hastened to include under this head businesses which offend only the more strictly esthetic feelings. Thus the Supreme Court of Illinois has declared void ordinances outlawing ice factories and milk depots and, though the consent of twothirds of the frontage owners was required, retail stores and garages." On the other hand, a Los Angeles ordinance, adopted in 1909, establishing seven industrial districts and declaring most of the rest of the city a residence district in which it is made unlawful for any person, firm or corporation to erect, establish, maintain or carry on To this the court said," There can be no question that the power to regulate the carrying on of certain lawful occupations in a city includes the power to confine the carrying on of the same to certain limits whenever such restriction may reasonably be found necessary to subserve the ends for which the police power exists, and it refused to declare that the legislative authority in forbidding the operation of a laundry in the residence district had so invaded private rights as to warrant the court's interference with its discretionary exercise of the police power. The Illinois court, furthermore, in a decision handed down in April, 1915,8 upheld an ordinance making unlawful the construction of billboards in certain residential blocks without the written consent of the owners of a majority of the frontage. 2e. g., N. W. Laundry v. Des Moines, 239 U. S., 486; People v. Lewis, 86 Mich., 273; contra, St. Louis v. Heitzeberg Packing Co., 141 Mo., 375. People ex rel Lincoln Ice Co. v. City of Chicago, 260 Ill., 150 (1913). People ex rel C. L. Keller v. Village of Oak Park, 266 Ill. Concerning the significance of the consent of the two-thirds, see 266 U. S., 137 (1912). Ex Parte Quong Wo, 161 Cal., 220. See also In the matter of Hadacheck V. Sebastian, 239 U. S., 394. The Thomas Cusack Co. v. The City of Chicago, 267 Ill., 344. The decision was on the ground that billboards increase the fire peril and offer vantage spots for disorderliness and crimeespecially in residence districts where the police watchfulness is less rigid than elsewhere. The same court maintained on the other hand, that a statute of 1909 forbidding, in certain cities, any structure for advertising purposes within five hundred feet of a public park or boulevard is invalid because the police power may not be used for purely esthetic purposes." This attitude is characteristic; the police power alleviates offenses to the grosser senses only -doubtless because the great majority of the people have been susceptible only to the grosser kinds of annoyance. The police power, however, has a tendency to extend itself to meet new demands and it would be a mistake to assume as a finality that it "cannot be used directly for esthetic purposes, and that ugliness cannot be abated as a public nuisance." The present state of the law and the possibility of future development are indicated in the following judicial language, It is along the entrance to parks and along the parks themselves preserved to attract lovers of nature and the beautiful that these unnatural and inartistic moving picture signs are displayed. But out of place, disagreeable and offensive though they are both to the civic pride and esthetic taste, and although the tendency of equitable jurisprudence is to extend its jurisdiction to include this situation, the fact remains that no authority now exists which will justify the legal conclusion that the plaintiff's signs now constitute a nuisance.2 For reasons similar to those for abolishing objectionable structures along residence streets, it often seems desirable to forbid the dwelling houses themselves to become objectionable -especially the establishment of a line a certain distance from the street, in front of which no building shall project and so mar the symmetry of the street's general appearance and obstruct the view of neighboring houses. In Missouri this has The Haller Sign Works v. The Physical Culture Training School, 249 Ill., 436 (1911). See also Quintini v. Bay St. Louis, 64 Miss., 483 (1886); People V. Greene, 83 N. Y., Supp., 460 (1903); Passaic v. Patterson Bill Posting, Etc., Co., 72 N. J. L., 285 (1905). Cushman, op. cit., 88. See, also, Freund, Police Power, 166. Fifth Ave. Coach Co. v. City of New York, 111 N. Y. Supp., 759. Affirmed, 194 N. Y., 19. 293. City Plan Limitations Upon Emi nent Domain. been held to take private property without compensation, but more recent decisions of the supreme courts of Virginia and of the United States indicate a breaking away from this ruling. The police power may, of course, be extended by a state constitution to include specific desiderata now denied for carrying out the city plan. Its exercise, however, would still be subject to the due process clause of the federal amendment, as interpreted by both the state and federal courts. When its police power proves inadequate for the occasion the city must fall back upon its power of eminent domain, as ning and the limited by the state constitutions, and condemn for purchase that which it cannot, of a right, take. Even when financial considerations do not interfere, however, this latter power is not unrestricted. The constitutions require that private property must not be taken for public use without just compensation, and the courts universally maintain that there exists in the very nature of the power a denial that it shall be taken in any event unless for a public use. Is a purchase of an easement in land bordering a park or boulevard, for the purpose of restricting its usage to preserve the beauty and attractiveness of the public property, for a public purpose within the meaning of the law? The Massachusetts court upheld the right of Boston to purchase the right to limit buildings on Copley Square to a height of ninety feet, although its decision seemed to rest partly on the fact that the regulation would prevent encroachments upon the light and air of the place, and answered this question affirmatively. Statutes of a similar nature existing in other states have not been judicially tested. 294. Excess Condemnation. The question of whether the purchase is for a public purpose assumes an importance that may prove very great when, instead of merely acquiring the right to regulate the use of land border 3St. Louis v. Hill, 116 Mo., 527 (1893). This sort of regulation has also been attempted under the police power. Eubank v. City of Richmond, 110 Va., 749 (1910), upholding Richmond ordinance fixing building line which could be ignored only with consent of two-thirds of the property owners on the block. Reversed, 226 U. S.. 137 (1912), but apparently on the ground that a police regulation could not be conditioned on the consent of property owners. "What the city cannot condemn under eminent domain, it may bargain for and buy. On this point see 2 Kent, Com.. 339. The same is true by implication from the constitutional provision.-Harding v. Goodlett, 3 Yerger (Tenn.), 41. "Attorney-General v. Williams, 174 Mass.. 476 (1899). se. g., Ind., Laws of 1911, ch. 231. |