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285. Municipal Awakening.
The cities of the world have not, as a rule, been brought up "by hand.” American cities, especially, have for the most part merely “tumbled up” without guidance and their lusty growth under the stimulus of our era of industrial expansion has brought them into an adolescence of awkward formlessness
-of which they are beginning to be acutely and painfully conscious. This embarrassing self-contemplation on the part of cities is bringing about a realization of the need of educational and formative processes that is finding expression, almost too rapidly, perhaps, in legislation establishing city planning commissions. These commissions study the physical features of cities in connection with their social and economic requirements, with a view to recommending—or even enforcing-plans with the object not only of acquiring such property as may be desirable for public purposes, but of so arranging the use of "the public property that the land which is privately owned may be put to the best usefulness." They provide an adequate public authority to think in terms not of individuals but of the city as a whole and to plan accordingly.
City Planning is justified by the assumption that, in the long run, what is best for all is best for each; it is a manifestation of the ever-broadening realization that cities are not farmer's neighborhoods, where individualism may be rampant with injury to no one except the individual, but highly socialized communities where the welfare of everyone is intimately connected with that of everyone else. New standards of coöperation must be established to meet its ends and old "rights" discarded when they delay those ends. In short, city planning means that the city is to have an individuality and significance of its own and is to endeavor to regulate its growth and development just as carefully as an individual would plan out and develop his pri. vate garden or estate. It involves, according to the secretary of the New York City Plan Committee,
286. Nature of City Planning.
General References: Robinson, C. M., City Planning: Nolen, Jno., City Planning; Shurtlefl. Flavel (in collaboration with F. L. Olmstead). Carrying Out the City Plan; Ilandbook of City Planning (National Municipal League); Cushman. R. E., City Planning and the Courts (Proceedings of Second Annual ('on
Illinois Municipal League, p. 83. 1915); (ity Planning, published quarterly as the official organ of National ('onference on City Planning: also Proceedings of the Annual Conferences of tbe same and its Bulletins issued from time to time.
2So thinks the editor of City Planning, Foreword of first issue (Mar., 1915). Such legislation is already found in about one-third of the states, ib., I, 4, p. 9.
%Robinson, op. cit., 299, indirectly quoting Lawson Purdy.
(1) the creation, adoption and revision of a tentative comprehensive plan for the physical development of the city and (2) the correlation of particular improvements, by whatever authority originated, with the requirements of the comprehensive plan. The comprehensive tentative plan should include at least the following: streets ; parks; playgrounds; transit; grouping of public buildings; railroads; waterways; terminals ; markets, and the districting of the city for the purpose of regulating the height, area and use of buildings.
“The typical conditions which are to be corrected or forestalled by scientific planning,” says Professor Robinson,
include, specifically, those of streets filled with a traffic which they are unable to carry with safety and speed ; are the housing of the poor amid surroundings injurious to moral, physical, and civic well-being; are the loss of opportunities for free and healthful recreation, on the part of adults as well as of children ; are the lessening of industrial and commercial efficiency; the inconvenient location and undignified crowding of public buildings; the higher cost of corrective as compared with preventive measures, and an economic waste resulting from instability in the character of neighbourhoods. To do away with such conditions as these is the high purpose of the replanning of cities and towns, or of their careful planning at the start, and of a platting of their outlying sections which deals with those sections not as isolated units but as parts of a whole.
The fundamental requisite for carrying out a city plan, once 2017 it has been undertaken and tentatively adopted, is the control Domain. by the city of the land which constitutes its area. The power of eminent domain, however, is universally restricted by the state constitutions and its exercise is always carefully scruti. nized by the courts.
Mr. Robt. H. Whitten,-The Constitution and Powers of a City Planning Authority, City Planning, I, 2.
"Robinson, op. cit., 4.
See, as to the nature of eminent domain, Clack v. White, 2 Swan. (Tenn.),
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' lan 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.
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.?
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 right 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 X. Y., 19 (1909).
Cicero Lumber Co. v. Cicero, 176 Ill., 9; Brodbine v. Rerere, 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. y., Foster v. Scott, 136 N. Y., 577 ; Edwards v. Bruorton, 184 Mass., 529.
Welch v. Suasey, 193 Jass., 373 ; affirmed, 214 L'. S., 91. See also 111 N. Y., 359.
Bib., see also Cochran v. Preston, 108 Md., 220 (1908). 1Ex parte Hadacheck, 132 Pac., 589 (Cal.)
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 depots4 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 ... any stone crusher, rolling mill, carpet beating establishment, fireworks factory, soap factory, or any other works or factory where power other than animal power is used to operate, or in the operation of, the same, or any hay barn, wood yard, lumber yard, public laundry or wash house.
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.
?e. I., 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 er rel Lincoln Ice Co. v. City of Chicago, 260 I11., 150 (1913). 4People ex rel Huntley Dairy Co. v. Village of Oak Park, 268 111., 256 (1915).
5People ex rel Friend v. City of Chicago, 261 Ill., 16 (1913) ; see also stubbs v. Scott, 95 Atl., 1060.
People er rel C. L. Keller v. l'illage of Oak Park, 266 Ill. Concerning the significance of the consent of the two-thirds, see 266 U. S., 137 (1912).
Ex Parte Quong Ilo, 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, 267 111., 344.