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the community as a whole should receive the benefit-in other words why the excess value should not accrue to the city. By means of excess condemnation the city acquires for itself the land especially benefited and so the opportunity for recoupment at its subsequent sale. Instances are, indeed, on record where large net profits have been thus made in opening and improving streets.* The sum total of experience in Europe, however, does not indicate that a net profit can be hoped for regularly, though substantial assistance in making the improvement may frequently result from excess condemnation.

Another argument in favor of allowing the city this power is expressed in the following paragraph from the California publicity pamphlet, setting forth the amendments to be voted upon in 1915, among them, one allowing excess condemnation,

Inasmuch as the erection or construction of the original public improvement creates, in a large measure, the increased values in the adjoining properties, it is manifestly unfair that the public, when seeking to enlarge such improvement, should be compelled to pay an enormously increased price for the adjoining property.”

Where an enlargement is to be expected speculation in adjoining lands is, of course, probable.

Needless to say the succesful use of excess condemnation depends upon the good judgment and honesty of municipal officials and where correct administrative methods are not rigidly enforced there is little likelihood that it can furnish more than an effective means of protection to public improvements. As in the case of extension of the police power, excess condemnation must be measured by the due process test of the federal constitution and its future in the United States consequently awaits the pronouncement of the federal courts. As in the case of extension of the police power, likewise, the city needs the power of excess condemnation to complete its ability to carry out whatever plan it may adopt. In providing means for accomplishing the plan, as well as in making the plan itself, the realization

*e. 9., Montreal.

5Similarly land may well be reserved in suitable locations for future public buildings.

Interesting problems of evidence in condemnation proceedings may grow out of attempts to speculate. See Union R. Co. v. Hunton, 114 Tenn., 609, 88 S. W.,

must always be present that, if there seems to be any conflict, “the convenience and enjoyment of the community should take precedence of the whim of the private owner.”

“No new constitution may be deemed a liberal instrument," says a thoughtful financial official of New York,

which does not enable the state and its subdivisions to absorb those values accruing through the exercise of governmental functions, and community effort.

An excess condemnation clause, as he says, is a step in this direction.

TENNESSEE NOTE.—The usual clauses preventing individuals from being deprived of their property but by the judgment of their peers or the law of the land and guaranteeing just compensation when their property is taken for public use are found in the Tennessee constitution. Otherwise it is silent upon all subjects connected with city planning. The cities of the state have also been negligent, but in recent years several of them have made considerable progress in the planning and development of parks and boulevards. • The city of Chattanooga, for instance, recently secured the services of the famous landscape architect John Nolen to draw up a plan for a park system. Memphis has been most active among the Tennessee cities. Its charter* provides for a Board of Park Commissioners, to be appointed by the city commission to serve without compensation. They must not hold other office. The board may employ a landscape architect and determine his salary. The board is given the duty, among others, "to devise and adopt a system of public parks, parkways, and boulevards for the use of the city and its inhabitants, and select and designate lands to be used and appropriated for such purposes, within or without the city limits, and to select routes and streets for boulevards, and to cause the same to be opened and widened as hereinafter set forth, and by and with the approval and authority by ordinance of the Municipal Council,

TA, E. Marling. Ch'man, in letter transmitting to the Mayor the report on Excess Condemnation of the New York City Committee on Taxation, 1915.

Deputy Treasurer Ernest Cawcroft, Proceedings of the Academy of Political Science, V, 241 (250).

°1, 8. “Law of the land" means the same as “due process of law." 11. 2

2 Memphis v. Hastings, 113 Tenn., 142; 86 S. W., 609,-Acts of 1899, ch. 142, authorizing taxing districts and cities to condemn land not more than ten miles beyond their corporate limits for parks and parkways was not invalid as authorizing condemnation of land for mere public convenience as distinguished from a public necessity or public use.

General Features of a Park System for Chattanooga, Tennesee, report to the board of park commissioners, by John Nolen.

See Acts of 1907, ch. 184, art. VII; Acts of 1909. ch. 298, sec. 52. For Nashville park commission, Acts of 1913, reg. sess. ch. 22, sec. 39.

to establish, change or re-establish the grade of any boulevard or parkway, and to require any railway upon or across such boulevard or parkway to be brought to the grade so established, changed, or re-established. No change shall be made in the grade of any street upon which any park land abuts, unless the Board of Park Commissioners shall approve of such change or grade.”

On petition, the owners of a majority of the front feet of lots fronting upon a parkway, boulevard, road or avenue, or a part of one, the board is authorized to recommend to the commission regulations of building lines and limitations upon the use that may be made of abutting lands.

Special assessments paid by the owners of abutting land, irrespective of improvements, is the usual method of financing the paving of streets in Tennessee cities."



Diminishing Importance of the

Just as the functions of the states have become of increas297. ingly less importance as the federal government has grown in Importance power and influence, and cities have grown to overshadowing County. proportions, so the local rural subdivisions of the states-espe

cially countieshave relatively lost ground as population has tended city-ward and ease of communication, together with improved ideas of administration, have centralized at the state capitols the control of more and more of the functions that formerly were delegated to county and minor local governments. The growth of cities and the necessary jurisdiction of county officers over municipal areas, possessing separate and in some respects conflicting governmental agencies, has tremendously complicated the whole problem. Developed from colonial continuation of English usages the county has, indeed, become in

"See Acts of 1905, 278. Arnold v. Knoxville, 115 Tenn., 195.

1General References: County Government. Vol. XLVII of the Annals of the American Academy of Political and Social Science (May, 1913): Fairlie. Jno. A., Local Government in Counties, Touns and Villages ; Urdahl, T. K., The Fee System in the United States.

On this point see Macy and Gannaway, Comparative Free Government, pp. 310-314.

many respects an anacronism under modern political and social conditions. Loss of prestige on the part of the county and its failure to continue prominently in the mind of the people has inevitably spelled decadence and has made local administration of the present what a well-known writer has aptly termed the "county jungle.”

There were, in 1910,4 2,942 counties in the United States, 298. ranging in size from New York county with 2,762,522 inhabi- in Counties. tants and Cook County, Illinois, with 2,405,233, to Cochran County, Texas, with sixty-five inhabitants. A few of them were co-terminus with great cities, whilst a large proportion contained no community of as many as 1,000 people. Inevitably very great differences in county government are found accompanying such diverse conditions, but they are less striking than the uniformity that prevails, generally speaking, throughout the great sections of the country in which the characteristic types of county government have developed. In New England, where the population tended to congregate in small, compact commu. nities, often distinctly separated by natural boundaries or unsettled country, local affairs were naturally left to the voters of each community, who could easily meet in a body and determine matters directly. Consequently the individual towns rather than the counties became the essential local units and the latter were given few governmental functions aside from the administration of justice. In the South, on the other hand, the people lived on scattered plantations, the aristocratic owners of which constituted the influential class politically. Roadbuilding, poor relief and other functions of the northern town were attended to by the planters themselves. There were few distinct local communities and the representative county board became the organ for such governmental acts as were not performed by the state.

In the middle states the counties became divided into townships-local subdivisions less distinct and with fewer functions than the towns. The township system stands intermediate be

*R. S. Childs.

*Thirteenth Census. The figures include the Louisiana parishes which may be thought of as the counties of that state. The name county is invariably used elsewhere.

"Since divided into two counties. Containing Chicago.

tween the New England towns and the southern counties. Township and purely county administration of local government spread westward through roughly parallel areas, but prairie townships, distinguished not by social arrangements but by surveyor's lines never assumed the importance that they possessed in the East. Throughout the far West, where population is still sparse, the county is the most important unit of local government.

Constitution-makers have been bountiful in their notice of counties and lesser subdivisions of the state. The existence of these subdivisions they have for the most part taken for granted; consequently the provisions in the constitutions are of a limiting rather than of a constructive character. Nevertheless, because the constitutions have recognized and regulated certain kinds of county government, the courts have held that they are the constitutional forms of government and cannot be super seded by statute.

In all the states except Georgia and Rhode Island' the chief governmental organ is the county board, commission or court, varying in membership from three or five to a score or mores and invested with such functions and powers as the legislature has seen fit to bestow upon it within the constitutionally prescribed limits. Among these limitations is the inability of the legislature to delegate its power of legislating. Except, however, for a few very brief directions concerning organization, and the number of members, the structure and composition of the boards are left undetermined.

There are a number of interesting clauses specifying what the board shall do. For example mingled judicial and administrative “jurisdiction” is conferred upon the Arkansas county Court

299. Governing Board.

in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of

See Fairlie, op. cit., 75. The county is always the unit for the administra

tion of justice.

Sometimes the number runs considerably higher. Erie ('ounty, New York, has a board of fifty-four supervisors.

The control of county finances is the most important function of the county board.

le. 9., Ark., VII, 30; Tex., V, 18; W. Va., VIII, 22.
re. 9., Cal., XI, 742 (1); Fla., VIII, 5; Ida., XVIII, 10; II., X, 6.

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