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 AMERICAN CITY PROGRESS 
 AND THE LAW 
 
 THE HEWITT LECTURES 
 1917 
 
COLUMBIA UNIVERSITY PRESS 
 SALES AGENTS 
 
 NEW YORK 
 
 LEMCKE & BUECHNER 
 30-32 West 27TH Street 
 
 LONDON 
 
 HUMPHREY MILFORD 
 Amen Corner. E.C. 
 
COLUMBIA UNIVERSITY LECTURES 
 
 AMERICAN CITY PROGRESS 
 AND THE LAW 
 
 BY 
 
 HOWARD LEE McBAIN 
 
 DORMAN B. EATON PROFESSOR OF MUNICIPAL SCIENCE 
 AND ADMINISTRATION IN COLUMBIA UNIVERSITY 
 
 COLUMBIA UNIVERSITY PRESS 
 1918 
 
 AU rights reserved 
 

 Copyright, 1918 
 By COLUMBIA UNIVERSITY PRESS 
 
 Set up and electrotyped. Published January, 1918 
 
PREFACE 
 
 This volume contains the substance of a series of 
 lectures given upon the Hewitt Foundation at Cooper 
 Union in the city of New York during the months of 
 February and March, 1917. It deals with certain of the 
 more important rules of law that are involved in some 
 of the forward-looking movements in American cities. 
 Under our constitutional system nearly every so-called 
 reform movement must reckon with the law; and 
 municipal reforms are especially liable to be called to 
 this reckoning. For of the several important types of 
 unit in our complicated system of government, the city 
 operates under the largest number of restrictions im- 
 posed by written fundamental laws. As a subordinate 
 agency of the state it is subject to most of those far- 
 reaching restrictions imposed upon the states by the 
 fundamental law of the narion. It is naturally con- 
 trolled also by many limitations embodied in the funda- 
 mental law of the particular state of which it is a part. . 
 And it is further subject to one and all of the usually 
 numerous restrictions imposed by its own fundamental 
 law — its charter. 
 
 It cannot be too greatly emphasized that the scope 
 of this volume is limited to an examinarion of legal 
 •principles. In what respects does the law as it now 
 stands facilitate or obstruct the city in its endeavor to 
 apply this or that new policy to the solution of an 
 existing problem? With the policy itself— whether it 
 
 389535 
 
vi PREFACE 
 
 be, for example, of home rule, or of billboard regulation, 
 or of zoning, or of municipal ownership of utilities — ^we 
 are not primarily concerned. Within the limits of this 
 volume it would be manifestly impossible, even if it were 
 desirable, to discuss in adequate fashion the pros and 
 cons of the numerous controversial questions that are 
 suggested by the topics under review. No considerable 
 reference will be made to the theoretical, the fiscal, 
 the political, the economic, the social aspects of the 
 policies under discussion except in so far as the views 
 of the courts have been predicated upon one or more 
 of these aspects. The law is the subj ect of our attention. 
 
 Howard Lee McBain 
 
 Warsaw, New York 
 August, 191 7 
 
CONTENTS 
 
 Chapter Page 
 
 I. Home Rule by Legislative Grant 
 
 The chief argument for municipal home rule; 
 home rule by constitutional grant; the legal prob- 
 lem involved in a legislative grant of home rule; 
 the delegation of legislative power to the cor- 
 porate authorities of cities; the reference of 
 charters to the electors; the delegation of char- 
 ter-making power to the corporate authorities 
 and the electors; legislative grants of home rule. I 
 
 II. Breaking Down the Rule of Strict Con- 
 struction of Municipal Powers 
 
 Loose V. strict construction of enumerated 
 powers; liberality toward the city in the earlier 
 cases; examples of the rule of strict construction; 
 implied power to grant franchises and to regulate 
 public utilities; implied power to own and oper- 
 ate public utilities; implied power to expand a 
 utility into the commercial field; implied power 
 to furnish a utility service beyond the city 
 limits; implied power to engage in a business of 
 a collateral character. 3^ 
 
 */III. Expanding the Police Power — ^Smoke 
 and Billboards 
 
 The common subjects of the police power; the 
 police power in relation to constitutional limit- 
 ations ; the police power distinguished from taxa- 
 tion and eminent domain; the smoke nuisance; 
 billboard regulations. 5^ 
 
 ylV» City Planning — Building Heights and 
 Zoning 
 
 Limitation on the height of buildings; zones 
 from which offensive trades and industries are 
 
viii CONTENTS 
 
 Chapter page 
 
 excluded; general "industrial" zones; zones for 
 the regulation of building heights; zones for the 
 establishment of building lines; zones for ex- 
 clusively residential purposes; the protection of 
 property values as a subject of the police power, 9^ 
 
 V. City Planning — Excess Condemnation 
 
 The rule of "public use;" is a constitutional 
 provision necessary? excess condemnation of 
 remnants of land; excess condemnation for the 
 "protection" of public improvements; excess 
 condemnation for undefined purposes; excess 
 condemnation for financial profit; alternatives 
 to excess condemnation. 1 24 
 
 VI. Municipal Ownership of Public Utilities 
 
 What IS a public utility? municipal ownership 
 under constitutional sanction; municipal owner- 
 ship under statutory sanction; acquisition by 
 eminent domain. 153 
 
 VII. Control over Living Costs 
 
 Early regulation of prices; development of the 
 law governing price regulation; what is a "pub- 
 lic" business? municipal markets; what lines of 
 business may the city enter? 1 74 
 
 VIII. Municipal Recreation 
 
 Parks and playgrounds; public halls, audi- 
 toriums, opera houses, theaters; entertainments, 
 celebrations, concerts; municipal v. commer- 
 cialized recreation. 203 
 
 IX» Promotion of Commerce and Industry 
 
 Development of water power; advertising the 
 city; municipal exhibits at expositions; financial 
 aid to private enterprises. 22 o 
 
 Table of Cases 251 
 
 Index 261 
 
CHAPTER I 
 
 HOME RULE BY LEGISLATIVE GRANT 
 
 Congestion of population is the essential premise of 
 city existence. Out of this premise arise economic- 
 and social problems that are manifestly localized. 
 The city, in consequence, is a more or less naturals 
 unit of government. It is a far more logical unit 
 than is a state of the American Union; it is even 
 more logical than are many of the national units of 
 the world. 
 
 In consideration of the obvious dependence of urban 
 life upon rural activities, the city is of course not a 
 logical unit for a completely independent government. 
 It may be impossible to define with precision which of 
 the problems of government within a city are inherently 
 local in character. It seems, nevertheless, beyond dis- 
 pute that there are problems that are peculiarly local. 
 This is recognized to an extent in the naked fact of 
 incorporation, in the mere investing of the city with 
 legal personality. Probably no one could be found who 
 would be hardy enough to urge that cities as corporate 
 entities should be ruthlessly cast among our institu- 
 tional discards — that their entire functions should be 
 carried on by direct action of the state. Yet in some 
 respects we have drifted perilously near to this, as a 
 hasty glance at the evolution of relations between the 
 city and the state will disclose. 
 
2 CITY PROGRESiS AND THE LAW 
 
 ' Tk^ chief argument for municipal home rule 
 
 In the early days of our history municipal charters 
 were brief and simple instruments. In somewhat gen- 
 eral terms these charters conferred powers of local self- 
 government. A considerable discretion both in the 
 interpretation of these powers and in the actual working 
 out of the scheme of city government was vested in a 
 few prescribed authorities. It seems unnecessary to 
 recount the steps by which all this was changed. The 
 rule of law became firmly established that, in the 
 absence of some constitutional provision in point, the 
 will of the state legislature was supreme ; cities enjoyed 
 no "rights" that had to be respected.^ From an atti- 
 tude of self-imposed deference toward cities, legisla- 
 tures gradually crossed over into an attitude of dis- 
 trust, indifference, spoliation, and sometimes even of 
 open hostility. Some — perhaps much — of the distrust 
 was deserved; although it must be remarked that the 
 "guardianship" of the legislature usually left much to 
 be desired. For the indifference there was perhaps some 
 justification. For the spoliation and hostility there was 
 manifestly no excuse. 
 
 This must be said also — ^that with the expansion of 
 municipal functions and the consequent swelling of 
 municipal expenditures, a very natural change came 
 about in the concept of what a municipal charter should 
 contain. A charter is the fundamental law of the city; 
 and while there is probably no one who can define the 
 term "fundamental" as used in this connection to the 
 satisfaction of any considerable number of persons 
 
 1 McBain, The Doctrine of an Inherent Right of Local Self-Government, in 
 16 Columbia Law Review, 190 and 299. 
 
LEGISLATIVE HOME RULE 3 
 
 other than himself, there is no doubt that our notion 
 of the proper scope of a municipal charter, however 
 general it may be, has widened. Wherever the charter- 
 making power may be lodged, whether in the state 
 legislature or in the local community, we shall proba- 
 bly never return to the brief municipal charters of 
 earlier times. 
 
 However that may be, it is simply a fact that in the 
 course of time the legislature has, by the enactment of 
 elaborate and ever more elaborate charters and charter 
 amendments, thrust its hands into the very minutiae 
 of city government. It has occupied field after field 
 that was formerly either wholly unoccupied or left to 
 local action. It has regulated detail after detail that 
 never should have been made the subject of charter 
 provision. The fundamental law of New York State 
 contains about 25,000 words. The fundamental law 
 of New York City, not including unrepealed provisions 
 of early charters and many special laws applicable to 
 the city, contains over 400,000 words. This is the 
 prime fact upon which the argument for home rule for 
 cities is founded. Bound in the innumerable impedi- 
 ments of complicated charter laws, cities have too 
 little opportunity for constructive self-development. 
 They must eternally appeal to an extraneous superior, 
 the state legislature; and they must often be denied 
 their requests. They must eternally fight against 
 "interference'* in their affairs, which is none the less 
 reprehensible because it is legal. 
 
 There are, of course, those who urge that the city 
 is in need of constant tutelage. This amounts to the 
 assertion that the city is incapable of self-government. 
 
4 CITY PROGRESS AND THE LAW 
 
 It may be freely admitted that all of our units of gov- 
 ernment show occasional, if not indeed frequent, ap- 
 pearances of political incapacity. It may be admitted 
 also that in many instances cities have been protected 
 against themselves by state legislature. But the homely 
 fact is that while in the fluxes of our politics state gov- 
 ernments are sometimes superior to city governments 
 in standards of civic righteousness and ability, they are 
 also sometimes grossly inferior in these standards. In 
 the face of such fluxes tutelage may be needed today 
 and protection against tutelage, tomorrow. By and 
 large, the capacity of the city for self government is 
 doubtless measured directly by our capacity as a 
 people for creating and operating democratic institu- 
 tions. 
 
 Home rule by constitutional grant 
 
 Whatever general arguments may be advanced in op- 
 position to the plan of extending larger powers to cities, 
 home rule is arriving fast. One-fourth of the states 
 of the Union have by constitutional provision already 
 conferred upon some or all of their cities the power to 
 frame and adopt their own charters. ^ In a number of 
 other states there is active agitation for a similar con- 
 stitutional grant. It is more important to face this fact 
 than to discuss the pros and cons of home rule as a 
 policy. 
 
 In most of the twelve states that have adopted this 
 system, the locally made charter is framed by an elected 
 board or commission and submitted to a vote of the 
 
 2 Missouri (1875); California (1879); Washington (1889); Minnesota 
 (1896); Colorado (1902); Oregon (1906); Oklahoma (1908); Michigan 
 (1908); Arizona (1912); Ohio (1912); Nebraska (1912); Texas (1912). 
 
LEGISLATIVE HOME RULE 5 
 
 people. Amendments are also made subject to a refe- 
 rendum. But the plan of granting home rule by con- 
 stitutional provision has produced some unhappy con- 
 sequences. It is easy enough to say that cities may 
 adopt charters for their ''own government," or regulate 
 their ''municipal affairs," or exercise "all powers of local 
 self-government," but what do these undefined phrases 
 mean? Who shall decide whether this or that specific 
 matter is a proper subject for regulation and control by 
 a municipality? And where a state law covers the same 
 subject matter as a charter provision, who shall declare 
 whether this matter is one of state or of local concern? 
 It is the courts that have been saddled with the almost 
 impossible duty of defining the vague and uncertain 
 terms in which these constitutional grants of power 
 have been made, and out of this situation a very con- 
 siderable body of complicated case law has developed. ^ 
 It may well be asked whether a grant of home-rule 
 powers actually necessitates so radical a step as the 
 delegation of charter-making authority. In answer to 
 this question several observations may be made. In 
 the first place, it is difificult to see how any substantial 
 grant of self-governing powers could be made without 
 giving cities the power to alter the elaborate and often 
 highly restrictive charters under which many of them 
 are operating. In the second place, as already re- 
 marked, our concept of the proper scope of a charter has 
 certainly expanded. A grant of power to the people of 
 a city is not necessarily identical with a grant to the 
 corporate authorities of the city. A fair-sized charter, 
 
 * For an analysis of the numerous cases, see McBain, The Law and the 
 Practice of Municipal Home Rule. 
 
6 CITY PROGRESS AND THE LAW 
 
 a local fundamental law, setting the metes and bounds 
 within which these corporate authorities must operate, 
 is doubtless so desirable that it may be said to be indis- 
 pensable. In the third place, it is practically impossible 
 in the usual modern charter to consider the powers 
 granted as something separate and distinct from the 
 organization of the government. Few powers are 
 granted to the city as a city; most powers are conferred 
 upon specifically designated corporate authorities. In 
 other words, powers are distributed with direct refer- 
 ence to the organization provided ; and the organization 
 is created with direct reference to the powers conferred. 
 It is practically inconceivable, therefore, that a city 
 could enjoy any considerable measure of home rule 
 unless it were competent to alter the organization of its 
 government, which means inescapably that it must be 
 endowed with some portion or the whole of the charter- 
 making power. 
 
 The legal problem involved in a legislative grant 
 of home rule 
 
 It is well known that the attitude of state legislatures 
 toward cities has undergone something of a change 
 within comparatively recent years. It is probable that 
 many legislatures would be willing to grant a consider- 
 able measure of self-governing power if they considered 
 that they were competent to do so under the usual 
 terms of our state constitutions. A grant of home rule 
 by statute rather than by constitutional provision has 
 many arguments in its favor. Imperfections in the 
 machinery for the exercise of such power could be much 
 more easily rectified. The scope of matters to be regu- 
 
LEGISLATIVE HOME RULE \ 7 ) 
 
 lated by the locally made charter could be defined by 
 the legislature instead of by the courts; and, after all, 
 it seems clear that the determination of the actual ex- 
 tent of powers to be exercised is wholly a question of 
 policy and not at all a question of law. As such, it is a 
 question calling for legislative rather than judicial set- 
 tlement. When it is considered, moreover, that our 
 methods of dealing with governmental problems must of 
 necessity be subject to change — that a function which 
 at one time may be regarded as primarily one of local 
 concern may at another time call for regulation and 
 control by the state — is it not apparent that readjust- 
 ments between the city and the state in the matter of 
 their respective spheres of control are from time to time 
 indispensable? Is it not also apparent that such re- 
 adjustments may be more easily and more satisfactorily 
 effected by the amendment of a statute rather than by 
 the process of constant tinkering with the state consti- 
 tution? On the whole, it seems not to be denied that if 
 an adequate measure of home rule for cities can be 
 secured by legislative grant, this would be preferable 
 to the plan of cementing a possibly large but unques- 
 tionably vague grant of power in the fundamental law 
 of the state. 
 
 The question before us, then, is whether the legisla- 
 ture, in the absence of a specific grant of authority, has 
 the constitutional power to institute this reform for 
 which there is so much clamor. This question brings up 
 for consideration a fundamental rule of American con- 
 stitutional law — the rule which declares that the legis- 
 lative power that is vested in two designated houses of 
 legislation may not be delegated. The books are full of 
 
8 CITY PROGRESS AND THE LAW 
 
 cases involving the application of this rule in one con- 
 nection or another. It would be impossible, even if it 
 were desirable, to attempt here anything like an ex- 
 haustive analysis of all that the courts have said upon 
 this subject.* A few points, however, are of especial 
 interest. 
 
 If it be conceded that a grant of adequate home rule 
 to cities necessitates a devolution of some portion or the 
 whole of the charter-making power, it is manifest that 
 this power must be conferred either upon some ordinary 
 or specially chosen corporate body of the city, or upon 
 the local electors, or upon a combination of the two. 
 This being so, it is of importance to consider the rule of 
 non-delegation of legislative power, first, in its applica- 
 tion to the powers that may be delegated to the cor- 
 porate authorities of cities, and second, in its applica- 
 tion to the reference of legislative charters to the local 
 voters for acceptance or rejection. 
 
 The delegation of legislative power to the corporate 
 authorities of cities 
 It has been universally conceded that the legislature 
 may delegate to the corporate authorities of a city the 
 power to enact by-laws and ordinances which have the 
 force of law — which are, indeed, nothing more nor less 
 than laws, regulating, as they often do, precisely the 
 same subjects that are regulated by acts of the legis- 
 lature itself. The practice of delegating such power as 
 this is of ancient origin, and it is well-nigh inconceiv- 
 able that a city without such power could operate as a 
 
 ^ For a more detailed discussion of this entire subject, see McBain, The 
 Delegation of Legislative Power to Cities, in Political Science Quarterly, XXXII, 
 pp. 276 and 391. 
 
LEGISLATIVE HOME RULE 9 
 
 municipal government at all. Here, then, is at least 
 one universal exception to the rule against the delega- 
 tion of legislative power. Nor have the courts been at 
 any pains to define or delimit the scope of subjects that 
 might be given over to regulations by local ordinance. 
 The legislature has been at complete liberty to cover 
 this or that subject by statute or to delegate control over 
 it to the municipal authorities. 
 
 In a few cases, however, it has been held that the 
 legislature may not delegate to the corporate authorities 
 of cities the power to alter in any respect the provisions 
 of the charters under which they are operating. ^ Two 
 recent New York statutes are of especial interest upon 
 this point. One of these, the so-called home rule act 
 of 1913,® apparently attempted to confer upon cities 
 powers not only in addition to those already granted by 
 their charters but also in conflict with existing charter 
 limitations. This law was so broadly drawn and em- 
 bodied so much of uncertainty that the cities of the 
 state did not hasten to avail themselves of the oppor- 
 tunities which it may possibly afford. However, in the 
 opinion of the attorney general of the state ^ the law 
 did not intend to allow cities to regulate all matters 
 relating to the conditions and relationships of the local 
 corporate authorities or to delegate the power to change 
 the form of government of the city. Further than this, 
 the view was expressed that ^^such power would he in- 
 
 s Haywood v. Mayor, etc. of Savannah, 12 Ga. 404 (1853); State v. Field, 
 17 Mo. 529 (1853); Dexheimer v. City of Orange, 60 N. J. L. 11 1 (1897). 
 See also Attorney General ex rel. Booth v. McGuinness, 78 N. J. L, 346 
 (1909). 
 
 6 Laws of New York, 1913, ch. 247. 
 
 7 Report of the Attorney General of New York, 1913, II, p. 375. 
 
10 CITY PROGRESS AND THE LAW 
 
 effectual if attempted to he granted^ In other words, it 
 was evidently the attorney general's opinion that the 
 power to amend the local charter and thus to repeal a 
 state law had not been granted by this law and could 
 not be constitutionally delegated. 
 
 The so-called optional city government law, enacted 
 by the legislature of New York in 1914,^ has also been 
 under review by the attorney general of the state in 
 respect to this same point. This law, which allowed 
 any city of the second or third class to adopt any one 
 of six forms of government, clearly vested in the cor- 
 porate authorities of such city the power to repeal by 
 ordinance certain portions of the old charter that were 
 not directly repealed by the adoption of the new law. 
 The attorney general held that it was beyond the power 
 of the legislature to "authorize a municipal corporation 
 to repeal by ordinance a statute of the state." There 
 was, in consequence, insuperable objection "to any at- 
 tempt to delegate to the council of such city the power 
 to say which part of the existing charter shall be re- 
 tained and which part of it rejected."^ 
 
 Now there is no question that the legislature is fully 
 competent to make the charter of a city a very brief 
 instrument, vesting in the corporate authorities created 
 by such instrument large powers to elaborate the local 
 government by ordinance. In the case of existing 
 charters the legislature may certainly accomplish this 
 by direct repeal of specified charter provisions. Why, 
 then, may not the legislature vest in the local author- 
 ities of a city the power to repeal designated provisions 
 
 8 Laws of New York, 1914, ch. 444. 
 
 • Opinion of the Attorney General of New York, January 11, 1916. 
 
LEGISLATIVE HOME RULE II 
 
 of the charter under which the city is at the time oper- 
 ating? "It makes no difference," says the attorney 
 general of New York, "whether they [city charters] 
 contain provisions which the legislature might in the 
 first instance have delegated the power to enact to the 
 local council. The answer to that is the legislature did 
 not delegate the power in the existing charter, but made 
 its own special provisions." If one regards the sub- 
 stance of things, this argument is certainly somewhat 
 attenuated. It amounts to this — that having occupied 
 a particular field through the medium of a charter pro- 
 vision, the legislature cannot thereafter retire from that 
 field by delegating to the local authorities power which 
 it might in the first instance have delegated with im- 
 punity. 
 
 Of course it is clear that the corporate authorities of 
 a city would never be vested with power to repeal a 
 charter in toto. Only a partial power would be con- 
 ferred. Otherwise, since whatever the corporate au- 
 thorities enact is in the nature of ordinance, and there- 
 fore subordinate, the distinction between the charter 
 and the ordinances of the city would be completely de- 
 stroyed. Something of the charter enacted by the 
 legislature would have to remain, even though it were 
 nothing more than the provisions creating those cor- 
 porate authorities who were empowered to repeal the 
 rest of the charter, and thus reduce its provisions to the 
 status of local ordinances. State constitutions occasion- 
 ally contain regulations that are expressly made subject 
 to alteration by the legislature. When the legislature 
 acts under an authority of this kind it does not, strictly 
 speaking, amend the constitution ; it merely transforms 
 
12 CITY PROGRESS AND THE LAW 
 
 a subject of constitutional regulation into one of statu- 
 tory regulation. But if the legislature were empowered 
 to do this with coery provision of the constitution, there 
 would no longer be any distinction between the consti- 
 tution and the statutes of the state. And so it would 
 be in respect to the alteration of charters by action of 
 the corporate authorities. 
 
 Over against the few opinions of record in which it 
 has been denied that the legislature is competent to 
 authorize the local authorities to transform specified 
 provisions of a charter into ordinances, may be set 
 many important instances in which the legislature has 
 actually exercised this competence without any result- 
 ing judicial controversy. If, for example, this rule of 
 law is sound, then numerous provisions of the present 
 building code of the city of New York are void ; for the 
 charter which created Greater New York in 1897 ex- 
 pressly provided that upon the enactment of a building 
 code by the municipal assembly (now the board of alder- 
 men) all statutes relating to buildings should be re- 
 pealed; but "such repeal," declared the charter, "shall 
 not take effect until such 'building code' shall be es- 
 tablished." ^° Many other provisions of this charter 
 were made subject to transformation into local ordi- 
 nances. ^^ Moreover, when the charter of the city was 
 fundamentally revised and re-enacted in 1901, no less 
 than fifty-six sections were expressly scheduled as "sec- 
 tions to remain in force until changed by the board of 
 aldermen." ^^ go, also, when the charter of the city of 
 
 ^°Laws of New York, 1897, III, sec. 647. 
 
 ^^ Salaries, for example, could be fixed by ordinance "irrespective of the 
 amount fixed by this act." Ibid., sec. 36. 
 ^2 Laws of New York, 1901, III, p. 663. 
 
LEGISLATIVE HOME RULE 13 
 
 Boston was remodeled in 1909, the mayor and city 
 council were vested with far-reaching power, subject to 
 certain specified exceptions, to reorganize the adminis- 
 trative departments of the government, and to redis- 
 tribute powers regardless of unrepealed provisions of 
 the existing charter. ^^ 
 
 Instances might be multiplied, but these are doubtless 
 sufficient. If there exists in the body of our constitu- 
 tional law a rule that the corporate authorities of cities 
 may not be granted the power to reduce specific provis- 
 ions of a municipal charter to the grade of ordinances, it 
 is passing strange that this rule has escaped attention 
 in the important instances mentioned. The only ex- 
 planation is that it has been applied in too few cases 
 and rests upon too insecure a foundation in reason to 
 warrant the assertion that it is an established rule of 
 law. 
 
 There is probably no doubt that, with the legislative 
 practice in this regard fairly established, a considerable 
 measure of home rule could be granted to cities by vest- 
 ing in their corporate authorities the power to regulate 
 by ordinance certain matters that are now regulated by 
 charter provision. This would undoubtedly be a means 
 of simplifying some of our overgrown city charters. 
 But if this policy were adopted only upon a niggardly 
 scale, it would scarcely satisfy the reasonable demands 
 for municipal home rule. If, on the other hand, it were 
 adopted upon an extensive scale, it would run counter 
 to the prevailing notion that the corporate authorities 
 of a city ought to be held in the leash of a fair-sized 
 fundamental law. As has been said, home rule for 
 
 " Acts and Resolves of Massachusetts, 1909, ch. 486, sec. 5. 
 
14 CITY PROGRESS AND THE LAW 
 
 cities does not necessarily imply that large unrestricted 
 power shall be placed in the hands of a few corporate 
 officers. Many earnest advocates of the principle of 
 home rule would hesitate to urge that the charter of a 
 sizeable city be decreased to a document of a few pages, 
 and that enormous powers be vested in the few author- 
 ities established by this greatly abbreviated funda- 
 mental law. 
 
 It is nevertheless true that, so far as the practice of 
 our legislatures is concerned, the corporate authorities 
 of cities have not infrequently been vested with power 
 to transform specified charter provisions into ordi- 
 nances subject to their control; and not only has the 
 competence of the legislature to delegate such power 
 been seldom questioned but it can also be supported by 
 considerable force of logic. Strictly speaking, this prac- 
 tice cannot be referred to as a delegation of the charter- 
 making authority; it is rather the delegation of power 
 to unmake parts of the charter. The practice is, how- 
 ever, of obvious interest, even though not of controlling 
 influence, in any consideration of the competence of 
 the legislature to delegate the charter-making power 
 to cities. 
 
 The reference of charters to the electors 
 
 It is a well-known fact that in numerous instances 
 legislatures have submitted laws for approval or re- 
 jection by the voters. Such laws have sometimes been 
 submitted to the voters of the entire state and some- 
 times to the voters of local units, such as counties, 
 towns, and cities. Many of these laws have been con- 
 tested before the courts upon the ground that, in pro- 
 
LEGISLATIVE HOME RULE 15 
 
 viding that a law shall depend for its existence or 
 enforcement upon the will of the voters as expressed at 
 the polls, the legislature in effect delegated its own 
 power of legislation. Without attempting to make any- 
 thing like a complete examination of all the intricacies 
 involved in this proposition, it seems obvious that the 
 competence of the legislature to refer to the local voters 
 at least certain kinds of laws can be readily sustained. 
 For example, it is universally conceded that the power 
 to prohibit or regulate the sale of intoxicating liquors, 
 or to levy a tax or issue bonds for a local public 
 improvement can be delegated to the corporate author- 
 ities of cities, to be exercised by ordinance. But since 
 these authorities are merely the agents of the local 
 voters, surely there can be no logical reason why the 
 power to accept or reject a liquor law or financial law 
 may not be delegated directly to the local voters. It is 
 simply a fact that the reference of such laws to the 
 local voters has been almost universally upheld, al- 
 though it ought to be said that not all of the courts 
 have relied solely upon the line of argument thus 
 indicated. 
 
 There is, however, another class of laws which the 
 courts have permitted the legislature to refer to the 
 local voters for acceptance or rejection. These are 
 municipal charters and charter amendments. Almost 
 from the beginning of our history as a nation, legisla- 
 tures have on occasion allowed municipal voters to 
 ratify or reject charters and similar laws affecting them. 
 This practice has been far more prevalent in some states 
 than in others, and although it has been far from uni- 
 form in any state — has, indeed, been far more excep- 
 
i6 CITY PROGRESS AND THE LAW 
 
 tional than otherwise — ^it has, nevertheless, had a con- 
 siderable vogue. 
 
 Most of the diverse arguments that have been put 
 forward by the courts in support of referenda on char- 
 ters and analogous laws have been directed to showing 
 that in voting for or against such a law, the voters do 
 not in fact participate in the making of the law and 
 do not, therefore, exercise legislative power. It seems 
 wholly unnecessary to attempt an analysis of all of the 
 arguments that have been employed to this end. 
 Perhaps the principal of these has been that in accept- 
 ing or rejecting a charter or similar law, the voters do 
 not act as legislators but as corporators. Their action, 
 say the courts, is precisely the same as the action of a 
 group of natural persons who accept or reject articles 
 of incorporation for the carrying on of some private 
 undertaking. From the historical point of view there 
 is something of force in this argument. From the mod- 
 em point of view it is manifestly the thinnest sort of 
 fiction. The charter of a private corporation is a con- 
 tract between the state and the incorporators. No 
 group of private persons can be compelled to incorpor- 
 ate, and, once being incorporated, the obligation of 
 their contract with the state cannot be impaired by 
 subsequent legislation. The charter of a municipal 
 corporation is not a contract between the state and the 
 voters of the city. Such a charter can be forced upon 
 the community against its will, and, once in operation, it 
 can be 'Violated" by the legislature without the slightest 
 regard for the wishes of the people of the locality. It is 
 impossible to follow with conviction a line of argument 
 which asserts, on the one hand, that the legislature may 
 
LEGISLATIVE HOME RULE 17 
 
 allow the voters of a city to accept or reject a municipal 
 charter for the same reason that it may allow persons 
 to accept or reject a private charter of incorporation; 
 but that, on the other hand, the legislature may compel 
 the acceptance of a municipal charter for the reason 
 that such a charter lacks the most essential element of 
 a private charter; namely, its contractual character. 
 In view of the mandatory character of most of the laws 
 regulating the governments of modem American cities, 
 the average voter would doubtless be surprised indeed 
 to discover that he has any capacity as a corporator of 
 the city. As a citizen, as a voter, as a taxpayer, as a 
 person, he of course has rights which he may defend 
 before the courts under the guaranties of the funda- 
 mental laws of the state and nation. As a corporator 
 of the city in which he lives, he obviously has no such 
 rights. 
 
 It would certainly assist in clearing the legal atmos- 
 phere which surrounds this subject if the courts would 
 frankly abandon this fiction of the law based upon the 
 analogy between the acceptance of a municipal charter 
 and the acceptance of a private charter. Because of its 
 local and special application a law for the governance 
 of a city is none the less a law enacted hy the entire 
 state. It is the mandate of a superior to an inferior; 
 and when that superior permits the inferior to declare, 
 through the medium of ballots cast at the polls, that 
 such proposed law shall or shall not be the law (or, what 
 is substantially the same, that it shall or shall not be 
 enforced), there seems to be no question that the local 
 voters do in fact participate in the making of the law 
 and therefore exercise legislative power. Their act is as 
 
I8 CITY PROGRESS AND THE LAW 
 
 truly legislative as the act of an individual legislator 
 when he votes upon a bill in its final form. It is as 
 truly legislative as the act of the governor when he 
 approves or vetoes a bill that is submitted to him. It 
 seems impossible to escape this conclusion; for it is 
 perfectly apparent that without the approval of a 
 majority of the voters who go to the polls, the charter 
 law is as ineffective, as utterly nugatory, as if it had 
 never been enacted by the legislature.^* 
 
 If the courts would only concede, then, as it would 
 seem they ought to concede, that the vote of the local 
 electors upon a charter or similar law is an act of legis- 
 lation, a long step would be taken in the direction of 
 sustaining the competence of the legislature to grant 
 the charter-making power to cities. It would not be 
 necessary to declare that the legislature could not sub- 
 mit such laws to the voters. The general rule against 
 the delegation of legislative power is not an express 
 prescription of the constitution ; it is derived merely by 
 implication from the clause which asserts that the legis- 
 lative power of the state shall be vested in the legisla- 
 ture. The courts might easily declare that this clause 
 
 1* In a recent case before the New York court of appeals it was declared 
 that "no court has ever held that the legislature could delegate to popular 
 vote the right to . . . repeal a statute." People ex rel. Unger v. 
 Kennedy, 207 N. Y. 533 (1913). But in this case it was held that the law 
 creating Bronx county out of a portion of New York county did not in fact 
 delegate such power to the voters. 
 
 With due respect for the high source of this rule of law, it is nevertheless 
 a fact that most of the laws that are submitted to popular votes operate to 
 repeal other laws. The acceptance of a new charter by the voters of a city 
 obviously repeals the old charter in whole or in part. Moreover, if the legis- 
 lature is competent to permit the local voters to accept or reject a charter 
 or any other law, it is difficult to see why the legislature is, after accept- 
 ance, powerless to permit a subsequent rejection in the form of a repeal of 
 such law. 
 
LEGISLATIVE HOME RULE 19 
 
 was intended only to establish the principle of the sep- 
 aration of powers — to prevent the delegation of legis- 
 lative power to the courts or to the executive branch of 
 the government — and that in consequence it did not 
 of necessity prohibit the legislature from delegating 
 legislative power to the voters. This would require no 
 violent twisting of the terms of the fundamental law of 
 the state. Courts have not infrequently refused to 
 apply far more palpable implications than the one here 
 under consideration. If the courts would take this 
 stand, the competence of the legislature to submit 
 charters to the voters could be sustained just as it has 
 been sustained. The only difference would be that this 
 competence would be rested upon a new, and, it would 
 seem, a more substantial, foundation. 
 
 The delegation of charter-making power to the 
 corporate authorities and the electors 
 
 We are in search of a line of consistent legal reasoning 
 that will sustain the authority of the legislature to del- 
 egate to cities the power to make their own charters 
 within such general scope and subject to such general 
 limitations as the legislature may set. The preserva- 
 tion of the distinction between that which is charter 
 and that which is ordinance is admittedly desirable. 
 But this distinction is not always founded upon a dif- 
 ference in respect to subject matter, upon a conscious 
 and consistent attempt to separate what may be re- 
 garded as fundamental from that which may not be so 
 regarded. It rests solely upon a difference in the enact- 
 ing authority. What the legislature enacts is charter, 
 no matter how trivicd may be its subject. What the 
 
20 CITY PROGRESS AND THE LAW 
 
 municipal authorities enact is ordinance, no matter how 
 high and important its subject. Both are acts of legis- 
 lation. In respect to the former, we have seen that the 
 power to reduce designated charter provisions to the 
 status of ordinances has in practice been delegated to 
 the corporate authorities of cities, although a few opin- 
 ions have denied the power of the legislature to make 
 such a delegation. We have seen also that the compe- 
 tence of the legislature to submit a proposed charter or 
 analogous law to the voters of a city has been univer- 
 sally sustained. Why, then, may not the legislature 
 divest itself completely of the power of enacting munici- 
 pal charters and vest such power in the local corporate 
 authorities and the local electors acting in combi- 
 nation? If the legislature can devolve a portion of 
 its power in this regard, why can it not devolve the 
 whole of it? 
 
 As has been noted, the corporate authorities should 
 not be vested with complete charter-making compe- 
 tence; for since what they enact is in the nature of 
 ordinance, the distinction between the charter and the 
 ordinances of the city would thereby be destroyed. On 
 the other hand, the voters cannot act in the matter of 
 charter-making except through some prescribed ma- 
 chinery; and any machinery that might be devised, ex- 
 cept perhaps a machinery of initiative and referendum, 
 would probably include at least initiatory action by 
 some existing or specially constituted corporate body. 
 The combination of proposal by such a body and rati- 
 fication by the electors would preserve the distinction 
 between the charter and the ordinances. What the 
 voters acted upon in the prescribed manner would be 
 
LEGISLATIVE HOME RULE 21 
 
 charter — the superior law of the city. What the cor- 
 porate authorities alone enacted would be, as at present, 
 ordinance. 
 
 There is another way of looking at this matter. In 
 granting the charter-making power to cities it is not 
 necessary and probably not desirable that the legisla- 
 ture should prescribe only the machinery for the exer- 
 cise of the power. There are a number of moot ques- 
 tions of local competence that ought to be settled by 
 statute, if for no other reason because the city should 
 not be left in uncertainty concerning the metes and 
 bounds of its powers in respect to dubious matters. In 
 Michigan and in Texas the power to frame their own 
 charters is delegated to cities by constitutional pro- 
 vision ; but the legislature may determine not only how 
 this power shall be exercised but also its scope. In 
 each of these states the legislature has enacted a some- 
 what elaborate "home rule" or "enabling" act.^^ If 
 such a law were enacted in a state containing no consti- 
 tutional provision on this subject, there seems to be no 
 reason why this law might not itself be regarded as the 
 fundamental law of every city. Such it would be in 
 fact, no matter what it might be called. It would not 
 do, perhaps, to call it the charter of the city; for this 
 would only result in a confusion of terms, and it is 
 doubtless desirable to retain the term charter as de- 
 scriptive of the instrument which actually provides the 
 organization of the local government. It might readily 
 be argued, however, that in enacting such a law the 
 legislature had exercised all the legislative power neces- 
 
 " Public Acts of Michigan, 1909, no. 279; General Laws of Texas, 1913, 
 ch. 147. 
 
22 CITY PROGRESS AND THE LAW 
 
 sary for the creation and regulation of municipal cor- 
 porations; that it had merely delegated a larger degree 
 of local legislative power than has been customary; 
 and that it had provided for the division of the power 
 so delegated into two parts — namely, the power of 
 charter-making, in which the voters should partici- 
 pate, and the power of enacting ordinances, which 
 should be regulated by the provisions of the locally 
 made charter. 
 
 The difficulty of following this argument, if any there 
 be, arises almost wholly from the use of old terms to 
 describe a somewhat new statutory situation. If the 
 home rule act passed by the legislature were called the 
 charter of the city, if the charter ratified by the voters 
 were called — let us say — the "fundamental ordinance" 
 of the city, and if the ordinances enacted by the corpor- 
 ate authorities were called by some appropriate term to 
 indicate their inferiority, the difficulty of sustaining the 
 constitutionality of such a legislative act, so far at 
 least as nomenclature is concerned, would be largely, 
 if not entirely, overcome. 
 
 Legislative grants of home rule 
 
 There remains, in conclusion, only to mention the few 
 instances in which legislatures have, without express 
 constitutional sanction, attempted to delegate to cities 
 a more or less complete charter-making power. In the 
 year 1828 a charter proposed by the state legislature for 
 the city of New York was submitted to a local refe- 
 rendum and was defeated at the polls. ^^ Thereafter the 
 corporate authorities of the city, without any express 
 
 ^^ Laws of New York, 1828, First Sess., ch. 249. 
 
LEGISLATIVE HOME RULE 23 
 
 sanction of law, provided for the election of members of 
 a municipal convention which should draft a charter 
 for the city. In 1829 this convention assembled and 
 framed a charter which was submitted to and approved 
 by the voters. At its next session, the legislature 
 enacted this charter without amendment. ^^ In 1846 the 
 legislature itself made provision for the election of 
 members of a similar municipal convention to revise the 
 charter of New York City.^^ The charter that was 
 drafted by this convention was defeated at the polls; 
 but shortly afterward a charter proposed by the board 
 of aldermen of the city was enacted by the legislature, 
 submitted to the electors, and by them approved. ^^ In 
 Brooklyn also a charter convention came together in 
 July, 1847, under the sanction of a legislative enact- 
 ment.20 The labors of this convention were not com- 
 pleted until the beginning of the year 1849, when a 
 proposed charter was, as required by law, "printed for 
 distribution among the inhabitants of said city." This 
 charter was enacted by the legislature but was made 
 subject to approval by the voters. ^^ 
 
 These are early instances in which the propriety of 
 permitting localities to draft their own charters was 
 recognized apparently without hesitation. Certain re- 
 cent instances of a similar character may also be noted. 
 By a law of Oregon enacted in 1901 twenty- three 
 designated voters of the city of Portland were em- 
 powered to draft a charter which should be approved 
 
 ^^ Laws of New York, 1830, ch. 122. 
 
 ^^ Laws of New York, 1846, ch. 172. 
 
 ^^ Laws of New York, 1849, ch. 187. 
 
 2° Stiles, History of Brooklyn, II, p, 279; Laws of New York, 1847, ch. 246. 
 
 2^ Laws of New York, 1849, ch. 47. 
 
24 CITY PROGRESS AND THE LAW 
 
 by the voters and subsequently submitted to the legis- 
 lature "for its approval or rejection as a whole, without 
 power of alteration or amendment. "^^ So also a statute 
 of Virginia enacted in 19 14 authorizes cities of more 
 than 100,000 inhabitants (Richmond) to propose new 
 charters to the legislature, the procedure for proposal 
 being that such charters should be enacted by ordinance 
 and submitted to a vote of the people.^^ In 191 5 a 
 law of the same state authorized fifteen per cent, of the 
 electors in cities having a population of from 75,000 to 
 100,000 inhabitants (Norfolk) to petition for the elec- 
 tion of a charter commission. The charter drafted by 
 this commission should, upon approval by the voters, 
 "constitute a request to the general assembly to grant 
 the said special charter or form of government provided 
 for therein. "24 
 
 So far as legal principles are concerned, It is mani- 
 festly important to note that each of the instances just 
 mentioned involved or involves direct action upon the 
 charters in question by the legislature itself. From the 
 viewpoint of political psychology it is nevertheless 
 apparent that a legislature would hesitate to amend or 
 
 " General Laws of Oregon, 1901, p. 296. It is questionable, of course, 
 whether the legislature of 1901 could bind the legislature of 1903 to approve 
 or reject the charter without power of amendment. 
 
 ^ Acts of Assembly of Virginia, 1914, p. 81. This act was amended in 
 19 1 6 so as to provide for the drafting of the charter by an elected commis- 
 sion; ibid, 1916, p. 116. A constitutional amendment (sec. 117), adopted 
 in 19 1 2, authorized the legislature to "grant a special form of govern- 
 ment," "ai the request, made in manner which m^y be prescribed by law, of 
 any city having a population of over 50,000 inhabitants." Obviously the 
 legislature of any state would enjoy such power without constitutional 
 sanction unless prohibited by a requirement of general legislation for 
 cities. 
 
 2^ Acts of Assembly of Virginia, Ex. Sess., 1915, p. Sod; revised and re- 
 enacted as applicable to cities of from 65,000 to 100,000; ibid., 1916, p. 62. 
 
LEGISLATIVE HOME RULE 25 
 
 to refuse to enact a charter which had been approved 
 by the voters of a city.^^ 
 
 It is interesting in this connection to note that the 
 New York municipal convention of 1846 regarded the 
 legislative ratification as of so little importance that 
 they incorporated into the charter which they drafted 
 and which was defeated at the polls a provision for the 
 future amendment of that charter by local action 
 without legislative approval. ^^ 
 
 Of very much greater importance than the instances 
 just mentioned are those in which the legislature has 
 delegated to cities the complete power of charter- 
 making without reserving to itself the right of subse- 
 quent ratification. Probably the earliest instance of 
 this was found in an Iowa law of 1858 which conferred 
 upon existing cities the power to amend their charters 
 by initiative petition and referendum vote.^^ Without 
 considering the question of the delegation of legislative 
 power this law was enthusiastically approved by the 
 supreme court of Iowa ^^ and still remains upon the 
 statute books as applicable to cities which have not 
 voluntarily adopted the general charter law.^^ So also 
 in Mississippi a law which provides for the amendment 
 
 25 In California under the constitutional provision granting home rule 
 to cities all charters and charter amendments must, after local drafting 
 and adoption, be submitted to the legislature for approval. In the entire 
 history of home rule in that state covering the enactment of numerous 
 charters and amendments, the legislature has never refused its approval. 
 See McBain, The Law and the Practice of Municipal Home Rule, pp. 218-220. 
 
 ^Journal of the City Convention, 1846, p. 715. 
 
 *' Laws of Iowa, 1858, ch. 157, sec. iii. 
 
 ^Von Phul V. Hammer, 29 la. 222 (1870); Ex parte Pritz, 9 la. 30 
 (1859); Davis & Bro. v. Woolnough, 9 la. 104 (1859); Hetherington v. 
 Bissell, 10 la. 145 (1859). 
 
 2^ Iowa Code of 1897, sec. 1047. 
 
26 CITY PROGRESS AND THE LAW 
 
 of city charters by local action without legislative rati- 
 fication has been approved by the supreme court of 
 the state. ^° The supreme court of Illinois has also ex- 
 pressed the opinion, arguendo, that the legislature might 
 provide for the incorporation and alteration of the 
 charters of cities *'in the discretion and through the 
 agency of those to be affected ;"^^ but the legislature 
 of that state has never adopted any such policy. 
 
 In Louisiana, under a law of 1886, any city except New 
 Orleans may amend its own charter or adopt an en- 
 tirely new charter upon a petition by taxpayers or 
 property owners and ratification by the electors. This 
 law appears never to have been contested before the 
 courts and probably has been infrequently used, owing 
 to the large majorities required for petitions. ^^ In 
 South Carolina by statutory allowance amendments to 
 any special charter or general act of incorporation may 
 be initiated by a petition of the majority of the free- 
 holders of the city and ratified by a majority vote of 
 the electors.^^ This law also seems never to have been 
 contested and probably for the same reason as in 
 Louisiana has seldom, if ever, been made use of. In 
 Florida charter-making power has been extended to 
 certain specific cities by the terms of somewhat recently 
 
 '° Code of Mississippi, 1892, sec. 3039; amended by Laws of 1900, ch. 69; 
 Code of 1906, sec. 3444; sustained in Yazoo City v. Lightcap, 82 Miss., 148 
 (1903). The procedure provided is enactment by the mayor and council, 
 approval by the governor and attorney general, and ratification by the elec- 
 tors only in the event of a protest filed by one-tenth of the voters. In 
 possible support of such a law was the phraseology of section 88 of the 
 Mississippi constitution of 1890. 
 
 31 People ex rel. Miller v. Cooper, 83 111. S85 (1876). 
 
 32 Acts of Louisiana. 1886, p. 138; ibid., 1896, p. 190. 
 
 33 Acts of South Carolina, 1899, p. 70. 
 
LEGISLATIVE HOME RULE 27 
 
 enacted special charters ;3* and although the power thus 
 conferred has certainly been exercised by Florida cities 
 in some instances, it has apparently not been con- 
 tested before the courts. Within the last few years 
 the legislature of Connecticut has granted the charter- 
 making power to one or two cities. Thus by a law of 
 19 1 3 the city of New Haven is authorized to amend its 
 charter by initiation of the board of aldermen or a 
 voters' petition and subsequent ratification at the polls.^^ 
 A similar law was enacted for Waterbury in 1915.^^ 
 It remains to be seen whether the Connecticut courts 
 will sustain such delegations of power if any judicial con- 
 test is raised over an attempted exercise. 
 
 It appears, therefore, from the above review, that 
 laws granting the charter-making power to one or more 
 cities are found in the statute books of at least six states 
 — Iowa, Mississippi, Louisiana, South Carolina, Florida, 
 and Connecticut. In two of these, Iowa and Mississippi, 
 such laws have been expressly upheld by the courts. In 
 none of them does the constitution specifically author- 
 ize the delegation of the charter-making power. 
 
 On the other hand, laws of the kind here under con- 
 sideration have been held void in at least two jurisdic- 
 tions. In Michigan, before the grant of home rule by 
 the constitution of 1908, a law was declared void which 
 provided for amending the charter of Detroit by the 
 proposal of the mayor and council or of 500 petitioners 
 and subsequent ratification by the electors. In the 
 opinion of the court this was an unconstitutional del- 
 
 ** See, for example, the charter of Gainesville; Laws of Florida, igoTi 
 p. 399- 
 
 25 Special Laws of Connecticut, 1913, p. 817; amended, ibid., 1915. P- 33S« 
 3'^ Ibid., 1915. P- 439- 
 
28 CITY PROGRESS AND THE LAW 
 
 egation of legislative power.^^ So, also, a recent Wis- 
 consin law was held invalid which conferred upon cities 
 the power to amend their charters by action of the cor- 
 porate authorities and approval by the voters or by 
 initiative petition and like approval, and which con- 
 ferred also the power of enacting a new charter to be 
 drafted by an elected municipal convention and ratified 
 by popular vote.^^ In the opinion of the court the 
 making and amending of charters was a "legislative 
 function at common law;" moreover, it was made 
 exclusively such by a provision of the Wisconsin con- 
 stitution which commanded the legislature "to provide 
 for the organization of cities. "^^ 
 
 It ought to be said that in none of the cases involving 
 a question of the delegation of charter-making power 
 to cities has this question been considered in the light 
 of the universally approved rule that charters and 
 charter amendments may be submitted for approval or 
 rejection by the local voters, nor in the light of the 
 fact that the power to reduce charter provisions to the 
 status of ordinances has been frequently conferred upon 
 
 " Elliott V. City of Detroit, 121 Mich. 611 (1899)- 
 
 '' Laws of Wisconsin, 191 1, ch. 476; State ex rel. Mueller v. Thompson, 
 149 Wis. 488 (1912). 
 
 '^ The supreme court of Vermont recently held void an act which con- 
 ferred upon the Public Service Commission power to incorporate villages 
 (determining their powers and form of government) and to amend city and 
 village charters on petition. Opinion of Justices, 86 Atl. 307 (1913)- So 
 also the West Vu-ginia court held that the legislature could not vest in the 
 circuit court the power to amend the special charters of cities of more 
 than 2000 inhabitants. St. Marys v. Woods, 67 W. Va. no (1910). 
 
 Neither of these opinions is directly in point with our discussion of home 
 rule. They involved the question of the delegation of legislative power to 
 state administrative and judicial officers respectively. 
 
LEGISLATIVE HOME RULE 29 
 
 the corporate authorities of cities. Indeed, it must be 
 admitted that the entire line of reasoning pursued in this 
 discussion has been based not so much upon the law as 
 it is as upon the law as it might and perhaps ought to be. 
 If the law as it is were clear, consistent, and firmly es- 
 tablished, there would perhaps be little justification for 
 urging a new point of legal attack and pursuit. But in 
 plain point of fact the law upon this subject enjoys 
 none of these characteristics. It stands in bewildering 
 uncertainty, while cities are clamoring for home rule. 
 It may well be that home rule by legislative grant will 
 in the long run prove more satisfactory than home rule 
 by constitutional grant. Would it not be regrettable, 
 therefore, if the rule against the delegation of legislative 
 power, with all of its numerous ramifications and incon- 
 sistencies, should be allowed to stand in the way of any 
 legislative attempt to work out an adequate scheme of 
 relations between the city as such and the state of 
 which it is a part? 
 
CHAPTER II 
 
 BREAKING DOWN THE RULE OF STRICT 
 CONSTRUCTION OF MUNICIPAL POWERS 
 
 It has been pointed out that In the usual modem 
 charter the grant of powers to municipal corporations is 
 made with great specification, and that powers are 
 commonly granted not to the city as such but to desig- 
 nated corporate authorities of the city. We come now 
 to consider the attitude which the courts have taken in 
 construing the powers thus granted Judge Dillon, 
 the best-known commentator upon the law of municipal 
 corporations, has expressed as follows the general 
 rules or canons of construction which the courts 
 apply :i 
 
 It is a general and undisputed proposition of law that a municipal 
 corporation possesses and can exercise the following powers and no 
 others: first, those granted in express words; second, those neces- 
 sarily or fairly implied in or incident to the powers expressly granted; 
 third, those essential to the accomplishment of the declared objects 
 and purposes of the corporation — not simply convenient, but indis- 
 pensable. Any fair, reasonable, substantial doubt concerning the 
 existence of a power is resolved by the courts against the corpora- 
 tion, and the power is denied. 
 
 ^^ These principles'' he adds, ^^are of transcendent im- 
 portance and lie at the foundation of the law of municipal 
 corporations y The rules thus set forth were expressed 
 in effect by many courts prior to their formulation by 
 
 1 Dillon, Municipal Corporations, 5th ed., I, sec. 237. 
 
THE RULE OF STRICT CONSTRUCTION 31 
 
 Judge Dillon, and they have been repeated down to 
 the present day in countless cases involving questions 
 concerning the competence of a city to exercise this or 
 that specific power. Of course like any other general 
 rule of law these rules give the opportunity for some 
 latitude in application. It is easy enough to say that 
 there must be fair implication that a certain power 
 has been granted by the charter; but judges will 
 naturally differ in opinion as to what is and is not a fair 
 implication. They will differ also as to whether a par- 
 ticular power is indispensable to the declared objects 
 and purposes of a municipal corporation. At best, 
 however, it is obvious that these canons of construction 
 are expressed in terms calculated to defeat anything 
 like a free and easy exercise of the powers granted to 
 cities. More especially is this the case in view of the 
 minuteness with which the powers of a city are often 
 enumerated. 
 
 Loose vs, strict construction of enumerated powers 
 
 At first blush it may seem far-fetched to contrast 
 the grant of powers to Congress with the grant of 
 powers to municipal corporations. There is, however, 
 something of reasonable analogy between the two. 
 In the first place, although the national government is 
 the highest governmental unit in our system and 
 municipal governments are almost the lowest units, 
 they are nevertheless both governments exercising 
 specifically enumerated powers. In the second place, 
 the grant of powers to Congress terminates with a 
 general grant of power "to make all laws which shall 
 be necessary and proper for carrying into execution 
 
32 CITY PROGRESS AND THE LAW 
 
 the foregoing powers." Frequently municipal charters 
 and codes follow the precedent set by the national 
 constitution in this respect. Almost identical in 
 phraseology, for example, is the clause of the Illinois 
 general municipal code which declares that the council 
 shall have power "to pass all ordinances, rules, and 
 make all regulations, proper or necessary, to carry into 
 effect the powers granted to cities or villages." Some- 
 times, indeed, the clauses in which these general or 
 supplementary grants of power are made are appar- 
 ently much more than "necessary and proper" clauses. 
 For example, the law applicable to the third class of 
 cities in Pennsylvania, after an elaborately detailed 
 statement of the specific powers granted, terminates 
 with a grant of power "to make all such ordinances, 
 by-laws, rules, and regulations not inconsistent with 
 the constitution and laws of this commonwealth as may 
 be expedient or necessary in addition to the special 
 powers in this section granted, for the proper manage- 
 ment, care, and control of the city and its finances, and 
 the maintenance of the business, good government, and 
 welfare of the city, and its trade, commerce, and manu- 
 factures." Such clauses as this, commonly known as 
 "general welfare" clauses^ seem to express almost 
 prodigal liberality toward the city in the matter of 
 powers. 
 
 Now everybody knows how, under the construction 
 of the United States Supreme Court, the "necessary 
 and proper" clause of the federal constitution has been 
 held to confer upon Congress enormous incidental 
 powers. It is very nearly true to say that Congress 
 may exercise almost any power that is remotely or 
 
THE RULE OF STRICT CONSTRUCTION 33 
 
 indirectly conducive to the effectuation of some specific 
 power conferred. No other single canon of constitu- 
 tional construction has had so far-reaching and con- 
 tinuous an influence upon the progressive evolution of 
 the national government. It has introduced an elas- 
 ticity and expansiveness without which it is difficult 
 to see how the changing problems of our national 
 economy could have been met. 
 
 It was, of course, somewhat natural for the courts to 
 take a different attitude with respect to the powers of 
 a subordinate unit of government from that which 
 they assumed toward the powers of the highest gov- 
 ernment of the land. There is certainly no reason in 
 law, however, why they might not have applied to the 
 powers of cities a rule of loose construction similar to 
 that which they applied to the powers of Congress, 
 thereby furnishing to the city precisely the same ele- 
 ments of elasticity and expansiveness which were needed 
 in the struggle of the city to meet the changing prob- 
 lems of municipal life. It is simply a fact that the courts 
 did not do this.^ They elected to regard the city as a 
 corporation rather than a government; and they 
 applied to the city the same rule of strict construction 
 of powers that they applied in the case of private 
 corporations. 
 
 2 In Groner v. City Council of Portsmouth, 77 Va. 488 (1883), the rule of 
 loose construction was applied to the powers of a harbor commission whose 
 members were appointed by the governor. Said the court: "It is a well- 
 settled principle, of frequent application, that a general grant of power 
 implies the necessary means for carrying into execution the power granted. 
 . This principle,- so clearly stated and powerfully enforced by Chief 
 Justice Marshall in McCuUoch v. State of Md., 4 Wheat. 421, applies to, 
 and is conclusive of, the present case." The application of this rule in con- 
 struing the powers of such a body is certainly unusual. 
 
34 CITY PROGRESS AND THE LAW 
 
 Liberality toward the city in the earlier cases 
 There are in the books of record literally hundreds 
 of cases involving the question of whether this or that 
 power exercised or sought to be exercised by a city was 
 embraced within the terms of its charter grant. The 
 mere number of such cases makes any generalization, 
 beyond the statement of the general canons of con- 
 struction', somewhat difficult. It may doubtless be said, 
 however, that in some of the earlier cases upon this 
 subject there are a breadth of vision and a liberality of 
 attitude that are not to be found in most subsequent 
 cases. Thus, in a case decided by the United States 
 Supreme Court in 1844 there was drawn into question 
 the power of the city of Philadelphia to take and 
 administer property that was bequeathed in trust to 
 the city for certain specified educational, charitable, 
 and other purposes. There was no pretense that the 
 charter of the city conferred this power in express 
 terms or even by specific implication. But since the 
 charter did empower the city ''to have, purchase, take, 
 receive, possess, and enjoy lands," and since the pre- 
 amble to the charter referred broadly to the "sup- 
 pression of vice and immorality, to the advancement 
 of public health and order, and to the promotion of 
 trade, industry, and happiness," there was no doubt 
 in the mind of the court that the city had power to 
 accept this trust.^ The rule of strict construction of 
 corporate powers was not even mentioned. "It ap- 
 pears to us," said Justice Story, who delivered the 
 opinion, "that any attempt to narrow down the pow- 
 ers of the corporation so as to exclude it from taking 
 
 ' Vidal V. Girard's Executors, 2 How. 127 (1844). 
 
THE RULE OF STRICT CONSTRUCTION 35 
 
 property upon trusts for purposes confessedly char- 
 itable and beneficial to the city or public, would be 
 to introduce a doctrine inconsistent with sound prin- 
 ciples and defeat instead of promoting the true policy 
 of the state." Here was certainly no pinched view 
 of the manner in which municipal powers should be 
 construed. 
 
 Again, in an early Maine case, although the specific 
 power contested — the power to prescribe punishment 
 for the mutilation of trees planted in the streets — ^was 
 not of much importance, the court, without any recital 
 of the rule of strict construction, declared broadly that 
 under the charter authority ''to ordain and publish 
 such acts, laws, and regulations, not inconsistent with 
 the constitution or laws of the state, as shall be needful 
 for the good order of the city," the municipal corpora- 
 tion might "establish all suitable ordinances for the 
 government of the city, the preservation of the health 
 of the inhabitants, and the convenient transaction of 
 business within its limits, and for the performance of 
 the general duties required by the law of municipal 
 corporations."^ 
 
 So also in an early Alabama case, the power of a city 
 to bore an artesian well for the supply of water to the 
 inhabitants was sustained under the authority con- 
 ferred by the charter to "pass all such orders, by-laws, 
 and ordinances . . . that shall be necessary for the 
 
 'State V. Merrill, 37 Me. 329 (1853). Commenting on this expression 
 of opinion Judge Dillon declared: "Such would undoubtedly be the proper 
 construction if this were the only power given to the city to pass ordinances 
 or by-laws. It should then be somewhat liberally construed. But if such 
 a general grant is given in connection with, or at the end of, a long list of 
 specific powers, perhaps so extended a construction might not be due it." 
 Municipal Corporations, sth ed., sec. 718, note. 
 
36 CITY PROGRESS AND THE LAW 
 
 security and welfare of the inhabitants thereof, and for 
 preserving health, peace, order, and good government 
 within the town."^ Although the court in this case 
 referred to the rule of construction applied to corporate 
 powers, the rule was set forth in much less exacting 
 form than that into which it later became solidified. 
 More important still, the view was advanced that it 
 was wholly unnecessary to specify in the charter the 
 "ordinary" powers of a city, such as the power to fur- 
 nish a supply of water; it was necessary only to enum- 
 erate such "extraordinary" powers as the legislature 
 might see fit to delegate. 
 
 It is worth noting in this connection, also, that the 
 early statement of the rule of strict construction was 
 sometimes quite different from its later formulation. 
 By no means all of the cases which have construed the 
 powers of cities with strictness have in fact been to the 
 disadvantage of the city viewed as a community of 
 people rather than a legal entity. Not infrequently 
 the rule of strict construction has been applied to defeat 
 a misuse of power by the corporate authorities of the 
 city. In some of the earlier cases, therefore, it was 
 declared not that any doubt concerning the existence 
 of a power must be "resolved against the corpora- 
 tion j'' but that such doubt was to be "resolved in 
 favor of the public ^^ The difference is obvious. A 
 doubt resolved in favor of the public might, accord- 
 ing to circumstances, be either "for" or "against" the 
 corporation. 
 
 5 Intendant and Town Council of Livingston v. Pippin, 31 Ala. 542 (1858). 
 
 •See, for example, Minturn v. Larue, 23 How. (U. S.) 435 (1859); Sey- 
 bert V. City of Pittsburgh, i Wall. (U. S.) 272 (1863); Reinbothv. Councils 
 of Pittsburg, 41 Pa. St. 278 (1861). 
 
THE RULE OF STRICT CONSTRUCTION 37 
 
 Examples of the rule of strict construction 
 From the innumerable cases involving the construc- 
 tion of municipal powers, it will be sufficient to instance 
 a few in order to illustrate the character of the ques- 
 tions that have arisen and the variations in the way in 
 which the rule of strict construction has been actually 
 applied by the courts. 
 
 It seems almost impossible to believe that fifty or 
 sixty years ago municipal corporations in all parts of 
 the country were engaged in a wild scramble to sub- 
 scribe to the stock of, or make donations to, railway 
 corporations. The exercise of this particular power 
 by cities and other local corporations is now almost 
 wholly a matter of historical interest. But a large 
 amount of litigation arose out of this situation, and 
 especially out of the later attempts of cities to disen- 
 tangle themselves from unhappy financial consequences. 
 Not infrequently was the point raised that an expendi- 
 ture for railway aid had been made which it was beyond 
 the power of the city to make. In the beginning the 
 Supreme Court of the United States, like most of the 
 state courts, assumed a very liberal attitude toward 
 the competence of cities in this regard. Thus it was 
 held in 1863 that the general power, subject to a refe- 
 rendum to the voters, to ''borrow money for any object 
 in its discretion" conferred upon a city the power to 
 issue bonds in aid of a railway company.^ So also it was 
 held at the same term of court that power to subscribe 
 for railway stock "as fully as any individual," included 
 the power to issue bonds for this purpose, although the 
 law granting this power made no reference to a bond 
 
 ' Meyer v. City of Muscatine, i Wall. 384 (1863). 
 
38 CITY PROGRESS AND THE LAW 
 
 issue. ^ Two years later the same court held that bonds 
 for railway aid could be issued under the general char- 
 ter authority to borrow money, subject to the approval 
 of two-thirds of the voters, "whenever in the opinion 
 of the city council, it is expedient." There could 
 be no "reasonable doubt," said the court, that this 
 grant was "sufficiently comprehensive" for such a pur- 
 pose.^ 
 
 To any one who is acquainted with the many cases in 
 which the powers of municipal corporations have been 
 rigidly construed, these instances of interpretation by 
 the highest court of the land must seem exceedingly 
 liberal. In the course of a very short time, however, 
 the disastrous financial results of the policy of govern- 
 ment aid to railways became apparent in all parts of 
 the country; and the attitude of the public mind upon 
 this subject was clearly reflected in the later opinions 
 of the courts. Thus in 1872 the United States Supreme 
 Court was heard to declare that the implied power to 
 issue municipal bonds in aid of railway companies 
 "should not be encouraged or extended beyond the 
 fair inferences to be gathered from the circumstances of 
 each case." ^^ Ten years later the same court held that 
 the general power "to borrow money on the credit of 
 the city and to issue bonds therefor" did not authorize 
 the issuance of bonds to aid in the development of 
 water power for the city.^^ In 1889 the court declared 
 
 *Seybert v. City of Pittsburgh, i Wall. 272 (1863). 
 
 5 Rogers v. Burlington, 3 Wall. 654 (1865). See also Gelpcke v. Dubuque, 
 I Wall. 175 (1863). 
 
 1° Police Jury v. Britton, 15 Wall. 566 (1872); but see the Mayor v. Ray, 
 19 Wall. 468 (1873) and Converse v. City of Fort Scott, 92 U. S. 503 
 (i87S). 
 
 " Ottawa V. Carey, 108 U. S. no (1882). 
 
THE RULE OF STRICT CONSTRUCTION 39 
 
 that the express power to subscribe to the stock of a 
 railway corporation did not authorize a city to issue 
 bonds to pay for the stock. The city would have to 
 ''provide for the payment of the stock in the ordinary 
 way in which debts contracted by a town are met, that 
 is, by funds arising out of taxation." ^^ This decision 
 was clearly out of harmony with the earlier decisions 
 upon this subject, although these earlier cases were not 
 expressly overruled. 
 
 These railway aid cases, it would seem, are fairly 
 illustrative of the fact already mentioned — to wit, that 
 while it is easy enough to formulate the rule of strict 
 construction in general terms, the actual applications of 
 the rule are undoubtedly subject to considerable varia- 
 tion at the hands of the courts. 
 
 Where the specific power has been granted to a city 
 in somewhat general terms without any provision in 
 respect to the manner in which the power is to be exer- 
 cised, the courts have often declared that the determina- 
 tion of this manner of exercise is within the discretion 
 of the municipal authorities. But again, the courts do 
 not always agree in the actual application of this gen- 
 eral principle. For example, the Illinois and Arkansas 
 courts have held that the power "to regulate the in- 
 spection, weighing, and measuring of brick, lumber, 
 fire-wood, hay, and any article of merchandise" does 
 not by implication include the power to appoint weigh- 
 masters, and to compel persons engaged in the coal busi- 
 ness to have all coal weighed and certified by these 
 masters. ^^ In New York, however, the power to appoint 
 
 12 Hill V. Memphis, 134 U. S. 198 (1889). 
 
 ^3 City of Savanna v. Robinson, 81 111. App. 471 (1898); Taylor Cleve- 
 land & Co. V. City of Pine Bluff, 34 Ark. 603 (1879). 
 
40 CITY PROGRESS AND THE LAW 
 
 weighmasters of coal was held to imply the power in the 
 city to compel their employment by dealers;^* and 
 in Missouri the power to "regulate and establish stan- 
 dards of weights and measures" and to provide "for the 
 inspection and weighing or measuring of hay or stove 
 coal, charcoal,' fire- wood, and all other kinds of fuel" 
 was held to sanction an ordinance prohibiting the sale 
 of coal unless the load had been "weighed by a weigher 
 approved of by the mayor, and authorized by the law 
 to weigh the same." ^^ Somewhat the same rule of inter- 
 pretation on this point has been applied in lowa.^^ 
 
 In at least two jurisdictions, Missouri and Florida, 
 it has been held that the power to enact an ordinance 
 preventing cruelty to animals may be derived from a 
 "general welfare" clause embodied in a municipal char- 
 ter. ^^ It has been held in Michigan that a city enjoys 
 the power to erect a city hall by "general implication," 
 even though the charter, which mentions specifically 
 such things as waterworks, hospitals, markets, ceme- 
 teries, public grounds, and parks, contains no specific 
 reference to a city hall.^^ So also in Nebraska the power 
 to build a jail may be implied from the power to enforce 
 ordinances by fine and imprisonment.^® But in Missouri 
 the power to "grant, purchase, hold and receive prop- 
 erty real and personal" does not authorize a municipal 
 corporation to acquire property for a park. In the 
 view of the court the proper cy which the city might 
 
 " Stokes V. City of New York, 14 Wend. (N. Y.) 87, (1835). 
 " Sylvester Coal Company v. City of St. Louis, 130 Mo. 323 (1895). 
 " Davis V. Anita, 73 la. 325 (1887). 
 
 "St. Louis V. Schoenbusch, 95 Mo. 618 (1888); Porter v. Vinzant, 49 
 Fla. 213 (1905)- 
 
 1' Torrent v. Muskegon, 47 Mich. 115 (1881). 
 w Dunkin v. Blust (Neb.), 119 N. W. 8 (1908). 
 
THE RULE OF STRICT CONSTRUCTION 41 
 
 acquire was only such as might be used for purposes 
 specifically mentioned in the charter — property that 
 might be necessary, for example, to execute the ex- 
 pressly granted power "to organize and maintain fire 
 companies." ^o 
 
 The recital of such decisions as these is not in itself 
 of especial interest. It serves merely to illustrate that 
 the rule of strict construction is, after all, a more or 
 less variable thing in application. 
 
 Implied power to grant franchises and to regulate 
 public utilities 
 
 As might be expected, this question of how the 
 powers of a city shall be construed has arisen frequently 
 in connection with various matters relating to the 
 subject of public utilities. It has usually been held, 
 for example, that the power to contract with, or grant 
 a franchise to, a more or less necessary public utility 
 may be implied from other powers granted in a munici- 
 pal charter. Thus the power "to prevent and extinguish 
 fires" necessarily and fairly implies the power to con- 
 tract for a supply of water. ^^ Indeed the furnishing of 
 water has come to be regarded as such a necessity in 
 cities that the authority" to contract for a water supply 
 has been placed upon the broad grant of power to 
 "enact such laws and regulations" as the city "may 
 deem necessary . . . for the good order and welfare 
 of said city." 22 On the other hand, it has almost in- 
 
 ^° Vaughn v. Village of Greencastle, 104 Mo. App. 206 (1903). See also 
 in respect to the power to acquire parks by implication, Bloomsburg Im- 
 provement Co., V. Bloomsburg, 215 Pa. St. 452 (1906). 
 
 2^ Waterworks Company v. Webb City, 78 Mo. App. 422 (1898). 
 
 22 City of Greenville v. Greenville Water Works Co., 125 Ala. 625 (1899). 
 
42 CITY PROGRESS AND THE LAW 
 
 variably been held that a city may not grant an ex- 
 elusive franchise for the furnishing of any utility unless 
 the power to make such exclusive grant is expressly 
 conferred. This rule is one of those which has been 
 laid down, not so much in derogation of the powers of 
 cities as for the protection of the local public against 
 a misuse of powers by the corporate authorities. ^^ 
 
 When a city has an express or implied grant of author- 
 ity to contract with or grant a franchise to a utility 
 corporation, a distinction has been drawn between the 
 power of the city to fix the rates in the franchise con- 
 tract and its competence to regulate rates continuously 
 under the police power. Its power to contract in 
 respect to rates has usually been held to be implied if 
 the city has power to contract for such purpose at all.^* 
 But the authority to enact police ordinances prescrib- 
 ing rates has usually been denied unless express war- 
 rant of the charter can be shown. ^^ The difference is 
 patent. In the one case the utility corporation, at the 
 time when it enters into the franchise contract, volun- 
 tarily aeeepts the rates prescribed as one of the condi- 
 
 23 Minturn v. Larue, 23 How. 435 (1859); Detroit Citizens* Street Railway 
 Company v. City of Detroit, no Mich. 384 (1896); Detroit Citizens' Street 
 Railway v. Detroit Railway, 171 U. S. 48 (1898). 
 
 24 City of Indianapolis v. Gas-Light & Coke Co., 66 Ind. 396 (1879); 
 Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. 271 (1896); Omaha 
 Water Co. v. City of Omaha, 147 Fed. i (1906); Muncie Natural Gas Co. v. 
 City of Muncie, 160 Ind. 97 (1902); Zanesville v. Gas-Light Co., 47 O. 
 St. I (1889); City of Noblesville v. Gas and Improvement Co., 157 Ind. 162 
 (1901); Western Paving & Supply Co. v. Railroad Co., 128 Ind. 525 (1891); 
 City of Indianapolis v. Trust Co., 140 Ind. 107 (1894); City of Cleveland v. 
 Railway Co., 201 U. S. 529 (1906); City of Detroit v. Railway Co., 184 
 U. S. 368 (1901); Boerth v. Detroit City Gas Co., 152 Mich. 654 (1908). 
 
 ^ For the general principle of strict construction see Interstate Commerce 
 Commission v. Railway Co., 167 U. S. 479 (1897). See also St. Louis v. 
 Bell Telephone Co., 96 Mo. 623 (1888). 
 
THE RULE OF STRICT CONSTRUCTION 43 
 
 tions of the contract. In the other case the city 
 attempts to impose a rate without the consent of the 
 corporation. Or, as it has sometimes been expressed, 
 the one power is a part of the city^s power to contract; 
 the other is a part of its power to legislate. 
 
 While it is generally held that the power to regulate 
 the rates and service of utility corporations (apart 
 from contract stipulations) must be expressly con- 
 ferred, the courts vary, as usual, in the way in which 
 they actually apply this rule. Thus the United States 
 Supreme Court, in a case decided in 1903, did not hesi- 
 tate to reverse, in favor of the power of a city to regu- 
 late water rates, the decision of a lower United States 
 court construing an ambiguously worded charter pro- 
 vision.2^ In other words, ambiguity was resolved in 
 favor of, not against, the city as well as the public. So 
 also the Illinois supreme court held that the city of 
 Chicago had power to regulate street railway fares 
 under a charter provision empowering the city to 
 * 'license, tax and regulate hackmen, draymen, omnibus 
 drivers, carters, cabmen, porters, expressmen, and all 
 others pursuing like occupations, and to prescribe their 
 compensation." " it is manifest that the court, had 
 it so elected, might easily have held the street railway 
 business to be an "occupation'* unlike that of a cab- 
 man or porter or even an omnibus driver. On the 
 other hand, the Indiana court, which has in some 
 respects been conspicuously liberal in its construction 
 of municipal powers, has held that in expressly grant- 
 ing the power '*to require companies to change grades 
 
 " Owensboro », Owensboro Waterworks Co., 191 U. S. 358 (1903). 
 
 '^ Chicago Union Traction Co. v. City of Chicago, 199 111. 484 (1902). 
 
44 CITY PROGRESS AND THE LAW 
 
 and crossings of their respective roads, and to raise or 
 lower tracks in order to conform to any grade which 
 may be established by ordinance," the legislature did 
 not contemplate *'the broad and extraordinary power of 
 abolishing grade crossings within the city, and com- 
 pelling the [railway] companies to construct and main- 
 tain a system of elevated tracks" within a prescribed 
 district. All that the city could do under the apparently 
 comprehensive grant was to require the abolishment of 
 specific crossings found to be particularly dangerous.^^ 
 
 Implied power to own and operate public utilities 
 
 There is another group of cases relating to the power 
 of cities in respect to local public utilities; these in- 
 volve questions of the power of the city to own and 
 operate public utilities in the absence of express grants 
 of power. Mention has already been made of an early 
 Alabama case in which it was held that a city might 
 provide a water supply from an artesian well under a 
 general grant of power to provide "for the security and 
 welfare of the inhabitants thereof, and for preserving 
 health, peace, order, and good government" within the 
 city. 2^ So also in an early Georgia case it was held that 
 under the power to make such contracts as were "nec- 
 essary for the welfare of the city" and to "levy a tax 
 for the fulfilment of the same," the city was competent 
 not only to construct a waterworks but also to issue 
 bonds for this purpose. Such a service, said the court 
 
 ^ state ex rel. City of Indianapolis v. Indianapolis Union Ry. Co., i6o 
 Ind. 45 (1902). 
 
 ^ Intendant and Town Council of Livingston v. Pippin, 31 Ala. 542 (1858) , 
 supra, 36. 
 
THE RULE OF STRICT CONSTRUCTION 45 
 
 was "necessary to the health and security of the city."^^ 
 This decision was subsequently reaffirmed; and in a 
 much later case the highest court of the same state 
 declared that the power to erect and maintain not 
 only a waterworks but also an electric plant could be 
 sustained under the general charter grant of power "to 
 do all things for the benefit of the city, and all things not 
 in violation of the constitution and laws of this state." ^^ 
 One of the most latitudinarian opinions ever ex- 
 pressed upon this subject was delivered by the supreme 
 court of Wisconsin in 1895.^2 The municipal charter in 
 question expressly declared that the city should have 
 **no power to borrow money or contract any debt which 
 cannot be paid out of the revenues of the fiscal year 
 . . . except as otherwise provided" and that no 
 money should "be appropriated for any purpose what- 
 ever, except as is expressly authorized by the city 
 charter." No provision of the charter was cited which 
 granted the power to construct either a waterworks or 
 an electric plant. Brushing these facts aside, the court 
 declared broadly: 
 
 It is not necessary to seek for an express delegation of power to 
 the city to build a waterworks and electric lighting plant in order to 
 determine whether such power exists, for the general power in re- 
 spect to police regulations, the preservation of the public health, and 
 the general welfare includes the usual means of carrying out such 
 power, which includes municipal water and lighting services. 
 
 This breadth of view is certainly highly commenda- 
 ble. Had it been the usual view of the courts, the en- 
 
 '° Mayor and Council of Rome v. Cabot, 28 Ga. 50 (1859); reaffirmed in 
 Wells V. Mayor and Council of Atlanta, 43 Ga. 67 (1871). 
 
 3^ Heilbron v. Mayor and Council of Cuthbert, 96 Ga. 312 (1895). 
 '^ EUinwood v. City of Reedsburg, 91 Wis. 131 (1895), 
 
46 CITY PROGRESS AND THE LAW 
 
 cumbered pathway of more than one city would have 
 been cleared, leveled, smoothed. It must be clearly 
 recognized, however, that it is nothing more nor less 
 than a complete repudiation of the usually applied doc- 
 trine of strict construction. 33 The court cited a number 
 of cases in support of this expression of opinion; but 
 none of the cases so cited was in point of fact rested 
 upon so unqualified a declaration of the principle of 
 law involved. 
 
 Very soon after the introduction of electricity for 
 lighting purposes it was held in South Carolina that a 
 city might acquire an electric light plant to be used 
 exclusively for public lighting under the "general police 
 power" conferred by the charter.^^ In North Carolina 
 an interesting decision was handed down in 1903, in 
 which it was held that the incurring of indebtedness for 
 the construction of a water system and an electric light 
 plant was a "necessary expense" within the meaning of 
 that term as used in a municipal charter. ^^ It does not 
 clearly appear from the case whether or not the city 
 was granted any express power to own and operate 
 either of these utilities, but the opinion would seem to 
 indicate the contrary. The view was expressed that 
 In the efforts of the courts to check extravagance and to prevent 
 corruption in the government of towns and cities, the judicial 
 branch of the government has probably stood by former decisions 
 from too conservative a standpoint, and thereby obstructed the 
 
 ^ In a dictum in McBean v. Fresno, 112 Cal. 159 (1896), the court said: 
 "Proper sewers are in this day so essential to the hygiene and sanitation of 
 a municipaUty that a court would not look to see whether a power to con- 
 struct and maintain them had been granted by the charter, but rather only 
 to see whether, by possibility, the power had been denied." 
 
 ^^Mauldin v. Greenville, 33 S. C. i (1889). 
 
 ^ Fawcett v. Mt. Airy, 134 N. C. 125 (1903). 
 
THE RULE OF STRICT CONSTRUCTION 47 
 
 advance of business ideas which would be most beneficial if put 
 into operation; and this conservatism of the courts, outgrown by 
 the march of progress, sometimes appears at a serious disad- 
 vantage. 
 
 In a recent Illinois case it was held that the power 
 granted to cities to construct or acquire "street rail- 
 ways" included the power to construct or acquire a 
 subway. "There is no difference," said the court, "be- 
 tween street surface railways and those constructed 
 beneath the streets." This case is of interest not be- 
 cause of any extreme liberality but because the oppo- 
 site view might easily have been taken had the court 
 cared to apply anything like a rigid rule of interpre- 
 tation. 
 
 It will be observed that the cases which have been 
 noted show a decided judicial bent in the direction of 
 sustaining the right of a city to own and operate public 
 utilities even though the power may not be unmistaka- 
 bly granted by the charter. It is interesting to remark, 
 moreover, that there are not many cases on this subject 
 that lean toward the rule of very strict construction. 
 This is doubtless due in large part to the fact that 
 cities have not frequently undertaken to supply utility 
 services where they have not been expressly empowered 
 to do so. One or two cases on the opposite side may, 
 however, be mentioned. Thus the New Jersey court 
 of errors and appeals has declared that a law "author- 
 izing the lighting of public streets and places in the 
 cities, towns, and townships, boroughs and villages of 
 the state, and to erect and maintain the proper appli- 
 ances" for doing so, does not vest in a municipality the 
 power to construct and operate an electric lighting 
 
48 CITY PROGRESS AND THE LAW 
 
 plant even though such plant be used for the sole pur- 
 pose of lighting the streets and public places.^^ On the 
 very face of things, this was, of course, an extremely- 
 contracted interpretation of the language of the statute 
 in question. So, also, where the power to regulate the 
 sale, manner of selling, and inspection of meats, and the 
 power to ''do all acts, and make all regulations which 
 may be necessary or expedient for the promotion of 
 health or the suppression of disease" were granted by 
 the terms of the charter, it was held in Illinois that a 
 city was nevertheless without power to establish a 
 municipal abattoir. ^^ Perhaps some extenuation for 
 the refusal of the court to apply a liberal rule of con- 
 struction in this case may be found in the fact that 
 abattoirs are not among the utilities that are com- 
 monly owned by American cities. 
 
 Implied power to expand a utility into the 
 commercial field 
 
 In the case of most municipal utilities It is possible 
 to distinguish between two kinds of public service. 
 Water is needed for fire protection, street cleaning, 
 and other strictly public uses as well as for private 
 consumption. Gas and electricity are required for 
 lighting the streets, parks, and public buildings, as 
 well as for distribution to residents. In a number of 
 instances question has arisen whether under the terms 
 of this or that charter a city empowered to own and 
 operate a particular public utility could sell its service 
 to private persons in addition to satisfying the more 
 
 ^ Howell V. Millville. 60 N. J. L. 95 (1897). 
 
 *' Huesing v. City of Rock Island, 128 111. 465 (1889). 
 
THE RULE OF STRICT CONSTRUCTION 49 
 
 obviously public needs. The cases involving questions 
 of this kind have arisen more frequently in respect to 
 the utilities of gas and electricity than in respect to 
 the supply of water, for the manifest reason, no doubt, 
 that duplication in the matter of lighting services is at 
 once more feasible and less absurd than in the case 
 of the water service. In a few cases, however, contest 
 has arisen even in respect to the sale of water to con- 
 sumers. For example, in Tennessee, where the charter 
 conferred the power to "provide the city with water by 
 water works," the "city" was in effect construed to in- 
 clude the inhabitants as well as the corporate entity. 
 The court regarded the clause as "very broad and 
 comprehensive. ' ' 
 
 When it comes to the power of a city to engage in the 
 business of commercial lighting without explicit authori- 
 zation, the decisions of the courts are not in harmony. 
 Thus in Massachusetts ^^ and in Illinois ^^ the power 
 "to erect and maintain street lamps," or "to provide for 
 lighting the streets, alleys, avenues, sidewalks, parks, 
 and public grounds," has been held not to include the 
 power to engage in commercial lighting. In Nebraska 
 there is a dictum to the same effect, ^^ while in South 
 Carolina a similar narrow construction was perhaps 
 fairly justified in view of the fact that the authority of 
 the city to acquire the electric plant even for strictly 
 public purposes was found only in a general charter 
 grant of the police power.'*^ 
 
 ^ Spaulding v. Peabody, 153 Mass. 129 (1891). This case was concerned 
 with the implied powers of towns, not cities. 
 
 '^Ladd V. Jones, 61 111. App. 584 (1895); Blanchard v. Benton, 109 111. 
 App. 569 (1903); Palestine v. Siler. 225 111. 630 (1907). 
 
 *° Christensen v. Fremont, 45 Neb. 160 (1895). 
 
 ** Mauldin v. Greenville, 33 S. C. i (1889); supra, 46. 
 
50 CITY PROGRESS AND THE LAW 
 
 On the other hand, the authority of the city to expand 
 the operations of a municipally owned lighting plant 
 from the public into the commercial field has been 
 sustained in Indiana under the power "to light the 
 streets, alleys, and other public places of such city or 
 town with electric light, or other form of light ;"^2 {^ 
 Florida under the power "to provide for lighting the 
 city by gas or other illuminating material;"*^ in Iowa 
 under the power "to establish and maintain electric 
 light plants ;"^^ in North Carolina, as already men- 
 tioned, under the authority to incur indebtedness for 
 any "necessary expense;*'*^ in California under the 
 authority to "acquire, own, construct, maintain, and 
 operate" a number of specified public utilities including 
 "gas and other works for light and heat;"^^ while in 
 Texas a city authorized to install an electric plant 
 for lighting the streets may at least sell excess current 
 to private citizens, "after discharging its duty to the 
 public," even though some of the streets may not have 
 been provided with light /^ 
 
 It may perhaps be said, on the whole, that the weight 
 of authority sustains the implied power of a city to 
 furnish a utility service to private consumers where 
 
 *2 Crawfordsville v. Braden, 130 Ind. 149 (1891). 
 
 ^Jacksonville Electric Light Co. v. Jacksonville, 36 Fla. 229 (1895). 
 
 ^ Thompson-Houston Electric Co. v. City of Newton, 42 Fed. 723 
 (1890). 
 
 *^Fawcett v. Mt. Airy, 134 N. C. 125 (1903); supra, 46. 
 
 *^ Gary v. Blodgett, 10 Gal. App. 463 (1909); failing to follow Hyatt v. 
 Williams, 148 Gal. 585 (1906), where the contrary rule was applied. See 
 also Glark v. Los Angeles, 160 Gal. 30 (191 1). where the Gary case was cited 
 with approval, the specific question before the court being whether the city 
 might furnish electric current for motive power as well as for light and 
 heat. 
 
 " Crouch V. City of McKinney, (Tex.) 104 S. W. 518 (1907). 
 
THE RULE OF STRICT CONSTRUCTION 51 
 
 the power is expressly granted to own and maintain 
 such a utility for any purpose. In one of the earliest 
 cases and perhaps the leading case upon this subject, *^ 
 so far as the utility of electricity is concerned, the court 
 argued as follows: 
 
 The corporation possessing, as it does, the power to generate and 
 distribute through its limits, electricity for the lighting of its streets 
 and other public places, we can see no good reason why it may not 
 also, at the same time, furnish it to the inhabitants to light their 
 residences and places of business. To do so, is in our opinion, a 
 legitimate exercise of the police power for the preservation of prop- 
 erty and health. It is averred in the complaint that the light which 
 the city proposes to furnish for individual use is the incandescent 
 light. Here again is a fact of which we are authorized to take judi- 
 cial knowledge. A light thus produced is safer to property, and 
 more conducive to health than the ordinary light. Produced by the 
 heating of a filament of carbon to the point of incandescence in a 
 vacuum, there is nothing to set property on fire, or to consume the 
 oxygen in the surrounding air, and thus render it less capable of sus- 
 taining life and preserving health. 
 
 Implied power to furnish a utility service beyond 
 the city limits 
 
 Still another aspect of the implied powers of a munici- 
 pality in owning and operating public utilities is con- 
 cerned with the power of the city to furnish service 
 beyond its own boundaries. Normally the jurisdiction 
 of a city in respect to all of its functions is confined 
 within its own geographical limits. That the legislature 
 may, and sometimes does, empower a city to exercise 
 exterritorial jurisdiction is beyond question. So far 
 as utilities are concerned perhaps the most notable 
 
 ** Crawfordsville v. Braden, 130 Ind. 149 (1891). 
 
52 CITY PROGRESS AND THE LAW 
 
 instance of this was the grant to the city of Cincinnati 
 of power to own and operate a steam railway which 
 connected the city with points many miles away. This 
 express grant of power was sustained by the Ohio 
 supreme court."*^ But what of exterritorial powers by 
 implication? 
 
 In a fairly early Michigan case it was held that under 
 the power to "construct, repair, and preserve sewers" 
 a city could by implication contract for the disposal 
 of its sewage beyond the city limits. Such implication, 
 however, the court thought "must arise from the exis- 
 tence of a state of facts which render it either actually 
 necessary, or at least manifestly desirable." In the par- 
 ticular case under review such a state of facts was 
 found to exist.^^ Cases may undoubtedly be found in 
 which the implied power of a city to furnish an excess 
 of service to extra-mural residents has been denied ; ^^ 
 but the more widely accepted rule would seem to be to 
 the contrary. This is founded upon the general notion 
 that while a city may not by implication exercise its 
 strictly governmental powers beyond its boundaries, 
 it is, in o\vning and operating a utility, acting more 
 nearly in a private or proprietary capacity, and that 
 in consequence its powers should be "construed in 
 accordance with the general rules that apply to private 
 individuals and corporations." ^^ On the other hand, a 
 city may not by implication purchase a franchise in 
 
 49 Walker v. City of Cincinnati, 21 O. St. 14 (1871). 
 ^° Coldwater v. Tucker, 36 Mich. 474 (1877). 
 
 " See, for example, City of Paris v. Sturgeon, (Tex.) no S. W. 459 (1908). 
 
 ^2 See, for example, City of Henderson v. Young, 119 Ky. 224 (1904)- 
 
 See also on the same point Schneider v. Menasha, 118 Wis. 298 (1903) 
 
THE RULE OF STRICT CONSTRUCTION 53 
 
 another city or contract to furnish another city with 
 a utility service.^^ 
 
 Implied power to engage in business of a collateral 
 character 
 
 Finally must be mentioned those cases in which 
 question has been raised concerning the competence of 
 a city, without express authorization, to engage in 
 some undertaking or business that is only collaterally 
 related to a service which it is expressly empowered to 
 perform. These cases are not numerous, but they are 
 both interesting and important. 
 
 In two states the courts have been called upon to 
 determine whether a city may by implication acquire 
 and operate a rock quarry for the purpose of securing 
 material for the maintenance of its streets. In Wiscon- 
 sin the court found no difficulty in sustaining this com- 
 petence as being implied in the power ^'to improve 
 streets" and to ^'purchase such real estate as it is deemed 
 reasonably necessary or convenient for the city^s use." ^^ 
 In this case the property in question lay outside of the 
 city limits, and most of the opinion was directed to 
 upholding the view already mentioned that in the exer- 
 cise of its so-called business functions a city may, with- 
 out specific grant of power, control property outside of 
 its boundaries, the city acting as an owner rather than 
 as a government. In Virginia, on the other hand, the 
 implied power of a city to acquire and operate a rock 
 quarry, whether within or without the corporate limits, 
 
 •^'Dyer v. City of Newport, 123 Ky. 203 (1906); Farwell v. Seattle, 43 
 Wash. 141 (1906). 
 
 "Schneider v. Menasha, 118 Wis. 298 (1903). 
 
54 CITY PROGRESS AND THE UVW 
 
 has been more than once denied.*^ In this state the vkw 
 was taken that a dty cannot, in the absence of express 
 authorization, exenase any function beyond its limits. 
 In Michigan a dty may not, unless ^jedfically emfww- 
 ered, engage in the manufacture of bricks to be used fcM" 
 street paving.** Said the court in the brief opinion that 
 was read: 
 
 We ^ree whfa the optnioo filed in the drcaiit court that the power 
 to engage in the business of bffkJcmakii^ is not induded in the pcjir- 
 eis cxpresBiy g;ranted to the dty, and that it is neither fairly implied 
 in, nor incident to, socfa poivers as are ezpfessly granted, nor is it 
 indispensable or even eawpntial to the dedared objects and purposes 
 ci the corporation. WliHe the law permits munidpal coipcM^atkMis 
 to do those things which are necessary to accomplish the objects of 
 their creation, under an implication of power . . . , the grant 
 has not usuaDy been hdd to go as far as to permit them to ei^age in 
 the manufacture of articles necessary to their lawful en te rprises, 
 where they are in ooomion nse and are to be had in the open market. 
 
 FinaDy, it may be noted that in a Mississippi case 
 in which the dty was expressly granted the power of 
 eminent domain to be exercised for certain specified 
 purposes "and for any other purpose" it was held that 
 this power could not be used to condemn land for a 
 ^ur track leading to a power plant which the dty was 
 empowered to own. The dty sought to construct this 
 track in order to save expense in the transportation of 
 coal. 
 
 It win be observed that in none of the cases just 
 mentioned was there any attempt on the part of the 
 
 •> Duncan «. City of Lyndibms, (Va.) 34 Sl E. 964 (1900); Dooable's 
 Adflunatratar ». Town at HanJaonbiirg. 104 Va. S33 (iposJ: Radford v. 
 Cbffc. 113 Va. 199 (1912). 
 
 ^Attorney General 9. Cammoa Coandl of Detroit. 150 Mkfa. 310 
 (1907). 
 
THE RULE OF STRICT CONSTRUCTION 55 
 
 city to go into a business involving the sale of products 
 or service to private persons. Each of them involved 
 a function that would eliminate certain purchases by 
 the city from private persons; but that was the limit 
 of their effect upon private business. One can see at a 
 glance the extremes to which either one of the views 
 expressed in these cases might lead. Every large city 
 is a purchaser of a great variety of supplies. Any city 
 that undertook to acquire the sources for, or to manu- 
 facture a considerable number of, the various commodi- 
 ties it required would indeed have a staggering problem 
 on its hands. On the other hand, the extreme logic 
 of the denial expressed in some of these cases would 
 prohibit a city from mixing its own paints for public 
 work, or from manufacturing its own asphalt. The 
 truth of the matter seems to be that the city, like a 
 private individual or private corporation, ought to be 
 allowed to use its own judgment in such matters. It is 
 a common practice for private persons engaged in this 
 or that line of business to effect economies by purchas- 
 ing sources of materials or by manufacturing incidental 
 products needed for the particular business. On the 
 whole, the decision of the Wisconsin court in sustaining 
 the implied right of a city to own a rock quarry strikes 
 with much force. The time has arrived, perhaps, when 
 we should abandon the prevalent notion that the busi- 
 ness judgment of a city is invariably either a poor judg- 
 ment or a corrupt judgment. 
 
 In one or two interesting cases question has arisen 
 as to the implied power of a city to go into the business 
 of selling to private persons products or service of a 
 character collateral to the business of operating a par- 
 
56 CITY PROGRESS AND THE LAW 
 
 ticular utility. Thus, in a Georgia case it was held that 
 a city could not, as an incident to the operation of its 
 water system, go into the plumbing business. The 
 court regarded this as an "independent business enter- 
 prise or occupation such as is usually pursued by private 
 individuals;" it was an affair "entirely unconnected with 
 a proper administration of its [the city's] governmental 
 duties."^^ In Michigan, however, it has recently been 
 held that in connection with the operation of an electric 
 plant a city may "do electric wiring . . . and fur- 
 nish fixtures and other accessories essential and conve- 
 nient in using electricity.'* ^^ Emphasizing the fact that 
 the management of an electric plant was a business 
 enterprise rather than a governmental function, the 
 court said: 
 
 It may well be contended that furnishing to customers taking 
 electricity the necessary devices or equipment to produce heat, 
 power, or light from the current is naturally incidental to and an 
 implied power connected with the business of operating an electric 
 plant. It does not appear that the municipality in so doing is con- 
 ducting the business by different methods or under other rules than 
 those which are observed by and control private business corpora- 
 tions or private individuals in the operation of an electric plant. 
 
 The court attempted to distinguish between this 
 case and the Georgia plumbing case on the ground that 
 water is delivered to the consumer ready for use, while 
 electric current that is delivered at the consumer's 
 premises is useless "without further mediums and appli- 
 ances." It may well be asked, however, whether wiring 
 and electric fixtures are any more indispensable for 
 rendering current practically available than are piping, 
 
 " Keen v. Mayor and Council of Waycross, loi Ga. 588 (1897). 
 68 Andrews v. City of South Haven, 187 Mich. 294 (1915)- 
 
THE RULE OF STRICT CONSTRUCTION 57 
 
 and faucets and sinks and tubs for rendering water 
 practically available. The fact is that the two cases 
 appear to be quite irreconcilable, although it is to be 
 remarked that in practice electric companies frequently 
 supply wiring and fixtures while water companies sel- 
 dom if ever carry on a plumbing business. 
 
 In the light of numerous modem cases in which the 
 rule of strict construction of municipal powers has been 
 applied with considerable severity, it is open to question 
 whether it may be said that the rule Is gradually being 
 broken down. It Is a difficult task to weaken the force 
 of a long-standing rule of law. From the cases that 
 have been under review, nevertheless. It would seem 
 that important Inroads are being made upon the rigidity 
 with which the rule of strict construction has been 
 applied. It is not to be expected that the courts will 
 abandon this rule entirely and adopt a rule of loose 
 construction somewhat similar to that applied in inter- 
 preting the powers of the Congress of the United States. 
 It is not even to be expected that in the near future they 
 will discontinue the reiteration of the usual canons of 
 construction as formulated by Judge Dillon. It Is only 
 to be hoped that in the specific application of these 
 canons they will In fact assume a reasonably liberal 
 attitude. This, as we have seen, the courts may do 
 if they care to do so. It would be highly desirable if 
 they would return to the view that any doubt against 
 the powers of a municipal corporation should be re- 
 solved, not necessarily against the corporation, but 
 always In favor of the public, whether for or against the 
 corporation. 
 
CHAPTER III 
 
 EXPANDING THE POLICE POWER- 
 SMOKE AND BILLBOARDS 
 
 It is very nearly impossible to define the term "police 
 power" in phrases that are any less general than the 
 term itself. For our purposes here, however, the concept 
 of the term may be fairly described without great diffi- 
 culty. On the one hand, our national and state consti- 
 tutions, by clauses of both specific and general import, 
 establish protection for the individual over against the 
 government in a large but somewhat elastic sphere of 
 liberty and of property rights. On the other hand, the 
 very existence of the government, endowed with regu- 
 latory powers, clearly recognizes that the rights of the 
 individual to his liberty and his property cannot and 
 should not be absolute. 
 
 Some of the powers which we confer upon our gov- 
 ernments are granted in express or clearly implied terms. 
 The police power, as the term is commonly understood, 
 is not in this category. It is a power which the govern- 
 ment enjoys without specification. For this reason our 
 national government, being a government of enumer- 
 ated powers, enjoys no general police power.^ Such 
 power is vested in the states, for the governments of our 
 
 1 Under specific powers the national government exercises certain powers 
 assimilable to those which might be included within the term police power. 
 The power to regulate commerce, for example, has been used for police 
 purposes; but in such instances Congress is exercising not the police power 
 but its power over commerce. 
 
SMOKE AND BILLBOARDS 59 
 
 states, being governments not of enumerated but of 
 residuary powers, enjoy all powers not denied to them 
 by the federal constitution or their own constitutions. 
 The powers of our state governments, then, may be 
 regarded as constituting a zone that lies between the 
 constitutionally protected rights of the individual on 
 the one side, and unlimited governmental supremacy 
 over the individual (outside of the sphere of national 
 powers) on the other side. In this zone the uncharted 
 police power of the state government occupies the most 
 conspicuous place. Whatever governmental action may 
 be justified under the police power is not regarded as 
 trenching upon the constitutional rights of the indi- 
 vidual; neither is it regarded as sustaining the notion 
 that the powers of the government over the individual 
 are unlimited. The police power, therefore, lies in, and 
 constitutes one of the major parts of, this middle 
 ground in which the government may act upon the 
 individual by restriction or compulsion. 
 
 The common subjects of the police power 
 But what subjects of legislation are included within 
 the range of the police power? In a general way these 
 subjects may be separated into two groups — those re- 
 lating to social affairs and those relating to economic 
 affairs. In each of these groups a few large subjects are 
 well settled as being within the police power. Thus, in 
 the social group, it is universally recognized that the 
 public peace or order, the public health, public morals, 
 and public safety — each in itself offering a broad and 
 by no means clearly marked field for governmental 
 
6o CITY PROGRESS AND THE LAW 
 
 regulation — are proper subjects for legislation under the 
 police power. A law prohibiting the carrying of con- 
 cealed weapons, or a law providing for the quarantine 
 of persons afflicted with contagious diseases, or a law 
 prohibiting indecent publications, or a law requiring 
 fire escapes on designated classes of buildings clearly 
 interferes with the liberty of individuals; but such laws 
 are sustained as proper exercises of the police power in 
 the interest respectively of the peace, the health, the 
 morals, the safety of the public. These are unques- 
 tionably the primary subjects of control under the 
 police power; and, on the whole, the courts are inclined 
 to sanction a very wide legislative discretion with ref- 
 erence to such subjects. Thus, to cite only a single 
 example, laws prohibiting the conduct of business and 
 amusements on Sunday are commonly upheld, although 
 such regulations cannot be constitutionally sustained 
 upon religious grounds, have no especial relation 
 to the preservation of the peace, safety, or even the 
 morals of the community, and can be logically gath- 
 ered under the protection of public health only if it 
 be conceded that the legislature has complete power 
 to regulate periods of labor and rest,^ which is open 
 to question. 
 
 * Professor Freund would sustain such legislation as a "protection of the 
 good order and comfort of the community." Police Power, p. 169. But it 
 can scarcely be argued that what constitutes "good order" varies with the day 
 of the week, while the "comfort of the community" presents, to say the least, 
 a somewhat vague concept, although the phrase is not infrequently used by 
 the courts in general discussions of the police power. The truth appears to 
 be that, notwithstanding constitutions to the contrary, legislation of this 
 kind is in frank recognition of the fact that the Christian religion is the 
 religion of the major portion of the people of the United States. Because 
 of our constitutions, however, courts must of necessity find other grounds, 
 whether reasonable or unreasonable. 
 
SMOKE AND BILLBOARDS 6i 
 
 In the group of police power subjects relating to 
 economic affairs may be mentioned frauds and dis- 
 honesty, oppression, business affected with a public 
 interest, and conservation of natural resources. Thus a 
 law regulating weights and measures may be sustained 
 as a protection to the public against fraud. A law pro- 
 hibiting combinations in restraint of trade is a protec- 
 tion against economic oppression. A law regulating 
 public utility rates or service is upheld because the 
 business of furnishing utilities is affected with a peculiar 
 public interest.^ A law establishing a closed season 
 for the shooting of game or the taking of fish is 
 supported in the interest of protecting natural re- 
 sources. 
 
 It is easy enough to indicate in this general way the 
 broad social and economic subjects that are commonly 
 regarded as being within the scope of the police power. 
 But notwithstanding the obvious elasticity of each of 
 these broadly named subjects, the courts have never 
 been content to restrict the police power within the 
 confines set by such an enumeration. In describing the 
 police power generally, they have commonly enumer- 
 ated only the social subjects — peace, order, health, 
 morals, safety — and have omitted all specific reference 
 to economic subjects. Almost invariably, however, 
 certain very indefinite subjects have been included, such 
 as the "general" or ''public welfare," the ''public com- 
 fort or convenience," and the "general prosperity" or 
 the ' 'general well-being' ' of the community. Indeed, the 
 courts have deliberately, and, it would seem, wisely, 
 left the police power practically undefined in scope. 
 
 3 Infra, ch. VII. 
 
62 CITY PROGRESS AND THE LAW 
 
 Take, for example, as a single instance among many, the 
 view expressed by Mr. Justice Harlan:* 
 
 The learned counsel for the railway company seem to think that 
 the adjudications relating to the police power of the state to protect 
 the public health, the public morals and the public safety are not 
 applicable, in principle, to cases where the police power is exerted 
 for the general well-being of the community apart from any question 
 of the public health, the public morals or the public safety. . 
 We cannot assent to the view expressed by counsel. We hold that 
 the police power of a state embraces regulations designed to pro- 
 mote the public convenience or the general prosperity, as well as 
 regulations designed to promote the public health, the public morals 
 or the public safety. . . And the validity of a police regulation, 
 whether established directly by the state or by some public body 
 acting under its sanction, must depend upon the circumstances of 
 each case and the character of the regulation, whether arbitrary or 
 reasonable and whether really designed to accomplish a legitimate 
 public purpose. 
 
 It seems perfectly patent that such comprehensive 
 phrases as "public welfare," ''public convenience," 
 "general prosperity," or "general well-being" are intan- 
 gible and illusive. It is utterly impossible to example 
 them in any satisfactory manner. As the learned justice 
 remarks, "the circumstances of each case" and the rea- 
 sonableness of the regulation must govern. It is of 
 importance to note, nevertheless, that, however unlim- 
 ited their definitions have been, the courts have not in 
 point of fact sustained under the police power many 
 laws regulating matters that lie wholly outside of the 
 broadly designated social and economic subjects that 
 have been mentioned. A few of the instances in which 
 
 * C. B. & Q. Railway Co. v. People ex rel. Drainage Commissioners, 200 
 U. S. 561 (1905) at p. 592. 
 
SMOKE AND BILLBOARDS 63 
 
 they have done so will be referred to in a later con- 
 nection. 
 
 The police power in relation to constitutional limitations 
 
 This broadly and vaguely defined police power is in 
 perpetual opposition to the guaranties of personal lib- 
 erty and private property rights as established by our 
 constitutions. The courts are kept constantly engaged 
 in marking at specific points the boundary line between 
 the two. A complete boundary line has not been and 
 will not be drawn. There are two general constitu- 
 tional guaranties which are of principal importance in 
 this connection — the guaranty of equal protection of! 
 the laws and the guaranty of due process of law. ' 
 Each of these may be viewed as affording protec- 
 tion to private rights as against improper exercises 
 of the police power under somewhat different circum- 
 stances. 
 
 Even when the legislature is acting upon one of those 
 general subjects of control that are universally recog- 
 nized to be within the scope of the police power, the 
 competence of the legislature is not without constitu- 
 tional limitations in behalf of private rights; for no 
 person within the jurisdiction of a state may be denied 
 the equal protection of the laws. The problem pre- 
 sented by this guaranty is indeed complex; but, 
 broadly speaking, this means that no person or class of 
 persons may be singled out for regulation from among 
 other persons in equality or similarity of circumstance. 
 A law regulating hours of labor may be sustained as a 
 proper exercise of the police power in the interests of 
 the public health. If such a law is made applicable 
 
64 CITY PROGRESS AND THE LAW 
 
 only to children, it may not be successfully contended 
 that this is a denial of equal protection of the laws; for 
 children constitute a reasonable class — a class that 
 bears a definite relation to the purpose of the law. But 
 if such a law were made applicable to adult laborers in 
 one industry and inapplicable to those in another in- 
 dustry of practically the same character, it would be 
 void on the ground of discrimination; it would deny 
 equal protection of the laws. Individual liberty and 
 property rights are not, therefore, wholly at the mercy 
 of the legislature, even when it seeks to regulate some 
 subject that is admittedly within the scope of the 
 public power. 
 
 When the legislature attempts to go beyond the 
 police power — to regulate some matter which the courts 
 refuse to regard as being within its proper scope — it is 
 perhaps needless to say that constitutional protection 
 may also be successfully invoked to defeat such legis- 
 lation. In instances of this kind there is available to 
 the aggrieved person not only the guaranty of equal 
 protection of the laws but also the clause which declares 
 that no state shall deprive any person of life, liberty, or 
 property without due process of law. Indeed, in many 
 of the cases upon this subject the courts fail to draw 
 any clear distinction between these two guaranties. 
 The regulation of railway rates is a proper exercise of 
 the police power because the railway business is affected 
 with a peculiar public interest; but if rates are reduced 
 to a point at which a reasonable income cannot be 
 earned, the railway company is not only denied the 
 equal protection of the laws, which other persons enjoy 
 in being permitted to earn reasonable incomes on their 
 
SMOKE AND BILLBOARDS 65 
 
 investments, but is also deprived of property without 
 due process of law by reason of the confiscatory char- 
 acter of the rates. 
 
 The police power distinguished from taxation 
 and eminent domain 
 
 The police power must be distinguished from the 
 taxing power and from the power of eminent domain. 
 These latter powers always involve the taking of private 
 property. For property that is taken in the form of 
 taxes the individual usually receives no direct compen- 
 sation. For property taken under the power of emi- 
 nent domain he must be paid just compensation. Each 
 of these powers may, however, be used for police pur- 
 poses. Most taxes are imposed solely for revenue pur- 
 poses; but a high liquor license tax, for example, may 
 be imposed primarily for purposes of regulation. In 
 other words, it may be a police measure in the interest 
 of health and morals. Even so, the levying of such a 
 tax is a manifestation of the taxing power rather than 
 the police power. The power of eminent domain is 
 used primarily to secure real property for direct public 
 use; but this power may also be used for police pur- 
 poses. Thus, when a railway company is required to 
 make a change of grade at a street crossing, in order to 
 secure the public safety, and damages are allowed as 
 compensation to the company, this is manifestly an 
 exercise of the power of eminent domain for police 
 purposes. Indeed, it is probably true to say that the 
 power of eminent domain may be used in any instance 
 in which the police power might be used to the impair- 
 ment of property rights. But the reverse of this is not 
 
66 CITY PROGRESS AND THE LAW 
 
 true, for certain important distinctions may be drawn 
 between these two powers. 
 
 In the first place, property rights may be invaded 
 under the police power only when the free exercise of 
 such rights has become detrimental to the public; and 
 while the power of eminent domain may be used in like 
 circumstances it is nevertheless commonly used only 
 when the property, regardless of the effect or character 
 of its private use, is needed for actual public use. For 
 instance, a hospital which constituted a nuisance might 
 be abated under the police power or might be con- 
 demned under the power of eminent domain, but prop- 
 erty for a hospital, even though its use be in the interest 
 of the public health, could not be acquired under the 
 police power, but only by eminent domain. In the 
 second place, regulation under the police power ordi- 
 narily imposes only a comparatively slight burden upon 
 private property, leaving its substantial value un- 
 impaired.^ Under eminent domain, however, it is 
 common either to take property entirely or to take the 
 major portion of its beneficial uses, leaving, if anything, 
 little more than the naked legal title.® Property 
 owners may be required in the interest of public health 
 to leave a portion of a lot unoccupied by a building; but 
 this portion could be taken for street purposes only by 
 eminent domain. In the third place, while neither of 
 
 ^ This is not always the case. Property which is of no large value and 
 which can normally be used only for a purpose forbidden by the law may be 
 sequestrated and destroyed. So also property that imminently endangers 
 the safety of the public (such as an unstable wall or building, or a building 
 in the path of a fire) may be summarily destroyed. Again, the entire value 
 of improvements on real property may be destroyed by regulations which 
 require the removal of an offensive business to a new site. 
 
 * This is not the case when eminent domain is used for police pur- 
 
SMOKE AND BILLBOARDS 67 
 
 these powers may be used for other than a public 
 purpose, it is perhaps natural that courts should re- 
 gard the purposes for which property may be taken 
 upon the payment of compensation as more inclusive 
 than the purposes for which property may be inter- 
 fered with without such compensation. It may be, for 
 example, that eminent domain may be used where the 
 purpose in view is purely aesthetic, while the police 
 power might not be so used. As we shall see, however, 
 the law upon this subject is not as yet fully settled. 
 
 So much for the general setting of the police power 
 under our system of jurisprudence. 
 
 It has been said that the police power belongs to the 
 states. Such power or parts of it may, however, be 
 delegated to cities by the state legislature. In every 
 charter enumeration of municipal powers there are 
 slices of the general police power of the state. Although 
 a considerable number of cases may be found in which 
 the exercise of this or that municipal power has been 
 referred to the "general police power" of the city, it is 
 probably correct to say that as a rule cities are regarded 
 as possessing only specifically delegated portions of 
 such power. ^ However, we are here interested not so 
 much in the extent to which the police power is ex- 
 ercised in cities directly by the legislature instead of by 
 the corporate authorities but rather in the constitu- 
 tional limitations that are imposed upon its exercise by 
 either of these agencies of government. The governing 
 principles are the same in either case. Let us consider, 
 
 ^In California (Art. XI, sec. 11), Washington (Art. XI, sec. 11), and 
 Ohio (Art. XVIII, sec. 3) a general local police power is delegated to all 
 cities by constitutional provision. 
 
68 CITY PROGRESS AND THE LAW 
 
 then, the status of the law in respect to the exercise of 
 the police power in cities over certain specific matters of 
 modem interest and importance. 
 
 The smoke nuisance 
 
 For twenty-five years or more cities in the United 
 States have been wrestling more or less abortively with 
 the problem of smoke prevention. The problem has its 
 practical, its scientific, and its legal aspects. On the 
 one hand, it is manifest that the very foundations of 
 modem civilization rest upon the consumption of fuel; 
 the very existence of cities is predicated upon it. On 
 the other hand, everybody recognizes that the great 
 quantity of smoke that shrouds whole cities or sections 
 of cities in an almost unbroken twilight pall is, to put 
 it mildly and indefinitely, highly objectionable. One 
 learned judge has somewhat over- vividly described 
 smoke as something which *' stifles the breath, produces 
 nausea and headache, drives children from their play- 
 grounds, and men from their gardens, prevents the 
 drying of clothes and ventilation of houses, darkens the 
 sunlight, and converts pleasant residences into prisons 
 in dog days, and defiles carpets, curtains, and dinner- 
 plates with deposits of soot and dirt. "^ One need 
 scarcely subscribe to the whole of this lurid picture of 
 a city population scurrying to cover, as it were, in the 
 face of a dread pestilence. Indeed, a distinguished sci- 
 entist,^ who argues that the solids in smoke, which are 
 often invisible, are really its "most objectionable prop- 
 
 ^ Quoted in People v. Horton, 41 N. Y. Misc. 309 (1903). 
 
 ^ Goss (Dean of the College of Engineering, University of Illinois), A 
 Problem of the Modern City, in Proceedings of the Engineers' Society of 
 Western Pennsylvania, March, 191 5, 13: 2:229. 
 
SMOKE AND BILLBOARDS 69 
 
 erties," has recently declared that "we really know very 
 little about smoke, and much less concerning means 
 whereby it may be suppressed. . . . All existing 
 ordinances designed to abate smoke are limited to a 
 consideration of a single property of smoke, namely, its 
 visibility. 'Black smoke', or 'dense brown smoke', or 
 'dense smoke' are among the things which are prohib- 
 ited. . . . But the conception is imperfect and any 
 procedure based thereon will fail to give the full mea- 
 sure of relief desired." 
 
 Progress has, however, been made in the scientific 
 study of the properties and effects of smoke and of 
 methods of abatement, notably by the researches of 
 the Mellon Institute of Industrial Research and School 
 of Specific Industries at Pittsburgh. And we may con- 
 fidently look for more and more accurate information 
 upon this subject as time goes on. Meantime, cities 
 have not waited ; and the courts have been called upon 
 to consider the validity of their regulatory ordinances. 
 
 A consideration of the powers of a city to abate smoke 
 takes us into the somewhat complex subject of nui- 
 sances. There is no question that where a person can 
 prove that he is personally suffering from smoke caused 
 by the action of another he may ordinarily secure an 
 injunction to protect himself. So, also, where a city is 
 empowered to abate nuisances — and most cities are so 
 empowered — the authorities of the city may take action 
 in such circumstances looking to the protection of the 
 individual aggrieved. In instances of this kind the 
 smoke would be regarded as a private nuisance — that is, 
 *'one which affects a private right not common to the 
 public, or which causes special injury to the person or 
 
70 CITY PROGRESS AND THE LAW 
 
 property of a single person or a definite number of 
 persons/ '1® But a private nuisance can be abated only 
 upon proof of direct and specific injury; and it is ob- 
 vious that the smoke problem in most cities cannot be 
 dealt with as an interminable series of incidents in which 
 proof of specific injury must be shown in each case. 
 
 A public nuisance, on the other hand, is "one which 
 affects at the same time an entire community or neigh- 
 borhood or any considerable number of persons, al- 
 though the extent of the annoyance or damage inflicted 
 upon individuals may be unequal." ^^ Such a nuisance 
 may be prohibited by a law or ordinance which im- 
 poses a penalty; and the only proof that is necessary 
 for conviction is proof of the commissi9n of the unlaw- 
 ful act. It is unnecessary to show any specific injury 
 to person or property. The term "public nuisance" is 
 often used interchangeably with the term "nuisance 
 per 5^," that is, one which "cannot be so conducted or 
 maintained as to be lawfully carried on or permitted 
 to exist. "^2 It is only as a public nuisance that smoke as 
 a general municipal problem may be adequately dealt 
 with, if at all.^3 Some of the laws and ordinances deal- 
 ing with this subject, in apparent mitigation of extreme 
 prohibition, have been so qualified that they seem to 
 
 10 Joyce on Nuisances, sec. 8. 
 
 " Ibid., sec. 7; quoted from California Civil Code, sec. 3480, as an 
 example of statutory definition. 
 
 ^^ Ibid., sec. 12. If there is a valid distinction between these terms it is 
 by no means consistently applied by the courts. 
 
 13 "The difficulty of proving damages in each case practically nullified 
 the ordinance." So declared the Smoke Abatement Committee of the Civic 
 League of St. Louis, in commenting upon the results of the decision of St. 
 Louis V. Heitzeberg Packing and Provision Co., 141 Mo. 375 (1897). The 
 Smoke Nuisance, 1906, p. 8. 
 
SMOKE AND BILLBOARDS 71 
 
 put the smoke nuisance in a half-way position between 
 a private and a public nuisance. Thus the sanitary 
 code of the city of New York imposes a penalty for the 
 emission of smoke "to the detriment or annoyance of 
 any person or persons;" and it has been held that evi- 
 dence must be introduced to show that the emission of 
 smoke actually caused personal detriment and annoy- 
 ance.^^ The smoke must be "in fact a nuisance," said 
 the court, "not perhaps within the full scope of the 
 common law nuisances, but a nuisance which, by 
 annoying one or more persons, shall be constructively 
 a public nuisance." Obviously under such circum- 
 stances the difficulty of specific proof places smoke 
 more nearly in the category of private than of public 
 nuisances. ^^ 
 
 From the viewpoint of the law, two principal legal 
 difficulties have arisen in connection with ordinances 
 declaring smoke to be an unqualified public nuisance. ^^ 
 One of these has concerned the competence of the city 
 to enact an ordinance of this kind where its charter 
 has not granted such power in express terms. Practi- 
 cally every city is endowed with power to abate nui- 
 sances; but this does not of necessity vest the city with 
 power to define or declare what shall constitute a public 
 
 ** People V. Sturgis, 121 N. Y. App. Div. 407 (1907). 
 
 ^^See also Erie R. Co. v. Mayor etc. of Jersey City, 84 Atl, 697 (1912), 
 where the ordinance under review prohibited dense smoke which "contains 
 soot or other substance in sufficient quantity to cause injury to health or 
 damage to property;" and People v. Lewis, 86 Mich. 273 (1891), where a 
 similar qualifying clause was embodied in the ordinance. 
 
 ^^ It seems unnecessary to discuss the question of a denial of equal pro- 
 tection of the laws which has arisen in some cases by reason of exemptions 
 established by the regulatory ordinance. See, for example, City of Brooklyn 
 V. Nassau El. R. R. Co., 44 N. Y. App. Div. 462 (1899); People v. Lewis, 
 86 Mich. 273 (1891); Moses v. United States, 16 App. D. C, 428 (1900). 
 
72 CITY PROGRESS AND THE LAW 
 
 nuisance. It has been held, therefore, that a city may 
 not prohibit generally the emission of dense smoke 
 unless it is expressly empowered to declare what shall 
 be a nuisance. 1^ But in New York an ordinance of 
 this kind has been sustained under the general "power 
 to enact sanitary ordinances having the force of law." ^^ 
 Indeed, there is probably only one case in which the 
 city enjoying the power to "declare," as well as to 
 "prevent and abate," nuisances has been denied this 
 competence. ^^ 
 
 Of much greater importance, however, in the consid- 
 eration of the validity of smoke prevention ordinances 
 is the question as to whether such ordinances are within 
 the scope of the police power. It must be borne in 
 mind, in the first place, that the consumption of fuel is 
 absolutely indispensable. Even though it were proved 
 that smoke is detrimental to the public health and 
 injurious to property, it is inconceivable that the courts 
 would allow any regulation to stand which in effect 
 operated to prohibit fuel consumption. In the second 
 place, the regulation of smoke must be gathered under 
 some appropriate subject of police power control. 
 
 1'^ City of St. Paul v. GilfiUan, 36 Minn. 298 (1886), distinguishing on this 
 ground Harmon v. City of Chicago, no 111. 400 (1884). See also Glucose 
 Refining Co. v. City of Chicago, 138 Fed. 209 (1905)- In City of St. Paul v. 
 Johnson, 69 Minn. 184 (1897), and City of St. Paul v. Haugbro, 93 Minn. 59 
 (1904), the question of the city's power to declare dense smoke a public 
 nuisance was not discussed. 
 
 ^^ People V. Horton, 41 N. Y. Misc. 309 (1903); Department of Health 
 of the City of New York v. EbHng Brewing Co., 78 N. Y. Supp. ii (1902), 
 
 " St. Louis V. Heitzeberg Packing & Provision Co., 141 Mo. 375 (1897). 
 Thereafter the Missouri legislature enacted a law applicable to St. Louis 
 which declared dense smoke to be a public nuisance. This law was sustained 
 in State v. Tower, 185 Mo. 79 (1904); but the Heitzeberg case was appar- 
 ently not overruled on the point respecting the power of the city. 
 
SMOKE AND BILLBOARDS 73 
 
 In a few instances the courts have been greatly Influ- 
 enced by the argument that consumers have found it 
 physically difficult, if not impossible, to comply with 
 the regulations imposed. Thus, in Missouri an ordi- 
 nance was declared "wholly unreasonable" which es- 
 sayed *'in advance of any known device for preventing 
 it [dense black or very thick grey smoke] to punish all 
 who produce it in any degree whatever. "20 50 in Penn- 
 sylvania the enforcement of an ordinance that imposed 
 a fine for permitting "smoke from bituminous coal to 
 be emitted . . .for over three minutes" was held to 
 be "impracticable, not to say impossible. "^i In New 
 Jersey an ordinance which prohibited the emission of 
 dense smoke was sustained in its application to fac- 
 tories and private establishments ; 22 but a similar ordi- 
 nance was declared to be unreasonable in its application 
 to a railway and "in derogation of the charter rights of 
 the road . " ^3 The court did not say that compliance with 
 the ordinance was impossible, but this is probably the 
 inference to be drawn from the declaration that a rail- 
 way company might "make such noise, smoke, and 
 smells as are reasonably unavoidable in the careful and 
 proper conduct of its business, even if some injury to 
 health and some damage to property be caused there- 
 
 2° St. Louis V. Heitzeberg Packing & Provision Co., 141 Mo. 375 (1897). 
 The ordinance was also held to be ultra vires. The state law on this subject 
 -which was subsequently upheld in State v. Tower, supra, declared that "if 
 there were no known practical devices or appliances by which dense smoke 
 so generated could be prevented," the owners and managers of buildings 
 "should not be punished therefor." 
 
 21 Pittsburgh v. Keech Co., 21 Penn. Sup. 548 (1902). 
 
 82 Atlantic City v. France, 75 N. J. L. 910 (1907). 
 
 2' Erie R. Co. v. Mayor etc. of Jersey City. 84 Atl. 697 (191 2); Pennsyl- 
 vania R. Co. V. Mayor etc. of Jersey City, 87 Atl. 465 (1913). 
 
74 CITY PROGRESS AND THE LAW 
 
 by." In a recent Michigan case it was held that an 
 ordinance prohibiting dense black or grey smoke could 
 not be enforced in its application to steamboats where 
 the "evidence of expert marine engineers showed that 
 there was no known appliance which could be used upon 
 marine boilers to prevent the emission of smoke" so long 
 as "the consumption of bituminous coal is permitted. "^4 
 The court did not discuss why the ordinance could not 
 have been held to require in effect that hard coal be 
 used. This has, in fact, been the effect of many smoke- 
 prevention regulations ; and in New York a law which 
 expressly prohibited the burning of soft or bituminous 
 coal within four miles of the city (now borough) hall 
 in Brooklyn was sustained. ^^ In Illinois, where the 
 courts have been extremely liberal in sustaining smoke- 
 prevention ordinances, it has, nevertheless, been held 
 that evidence of the fact that a heating plant "was of the 
 most improved type and that the owner had done all 
 that skill could devise to prevent smoke," should be 
 admitted in mitigation of the penalty although not for 
 the purpose of defeating recovery on the ground that 
 the ordinance was impossible of enforcement.^® 
 
 While certain cases may be cited, therefore, in support 
 of the view that smoke may not be prohibited if the 
 prohibition is impracticable, there are a number of 
 cases which, with or without express declaration, pro- 
 ceed upon the assumption that the emission of dense 
 
 24 People V. Detroit etc. Co., (Mich.) 153 N. W. 799 (1915). This decision 
 was not to be regarded as a bar to future action under the ordinance if prac- 
 tical appliances should be invented. 
 
 25 City of Brooklyn v. Nassau El. R. R. Co., 44 N. Y. App. Div. 462 
 (1899); reaffirmed in City of New York v. Johns-Manville Co., 89 N. Y. 
 App. Div. 449 (1903)- 
 
 ^ City of Chicago v. Knobel, 232 111. 112 (1908). 
 
SMOKE AND BILLBOARDS 75 
 
 smoke may be prevented by mechanical devices for 
 consuming, burning, or washing the smoke, by the 
 use of hard instead of soft coal, and by proper stoking. 
 The court of appeals of the District of Columbia has 
 expressly averred that the burden of showing the im- 
 possibility of compliance and, therefore, the unreason- 
 ableness of the prohibition against smoke, rests upon 
 him who violates the regulation.^^ 
 
 That dense smoke may be declared to be a public 
 nuisance and as such may be prohibited has generally 
 been sustained as a valid exercise of the police power. It 
 must be admitted, nevertheless, that the courts have 
 more frequently than not proceeded upon popular as- 
 sumptions rather than scientific facts. It has been de- 
 clared that smoke is "detrimental to certain classes of 
 property and business" and is a ''personal annoyance to 
 the public at large ;" ^^ that it is ''most objectionable and 
 offensive;" ^^ that it is "well within the police power of 
 the state" because it is "detrimental to the public wel- 
 fare;" ^° that it lies "on the border line of a public nuis- 
 ance." ^^ In a case recently decided by the United 
 States Supreme Court it was not even thought necessary 
 to discuss the effects of smoke or the public purpose to 
 be accomplished by its prohibition. The court simply 
 declared :^^ 
 
 2' Bradley v. District of Columbia, 20 App, D.C. 169 (1902); reaffirming 
 Moses V. United States, 16 App. D. C. 428 (1900). See also Sinclair v. 
 District of Columbia, 20 App. D. C. 336 (1902). 
 
 ^ Haripon v. City of Chicago, no 111. 400 (1884). 
 
 ^^ Department of Health of the City of New York v. Ebling Brewing Co., 
 78 N. Y. Supp. II (1902). 
 
 3° City of Brooklyn v. Nassau El. R. R. Co., 44 N. Y. App. Div. 462 
 (1899). 
 
 ^^ Bowers v. City of Indianapolis, (Ind.) 81 N. E. 1097 (1907). 
 
 '2 Northwestern Laundry v. Des Moines, 239 U.S. 486 (1915). 
 
76 CITY PROGRESS AND THE LAW 
 
 So far as the Federal Constitution is concerned, we have no doubt 
 the state may itself, or through authorized municipalities, declare the 
 emission of dense smoke in cities or populous neighborhoods a nui- 
 sance and subject to restraint as such; and that the harshness of 
 such legislation, or its effect upon business interests, short of a 
 merely arbitrary enactment, are not valid constitutional objections. 
 Nor is there any valid Federal constitutional objection in the fact 
 that the regulation may require the discontinuance of the use of 
 property, or subject the occupant to large expense in complying 
 with the terms of the law or ordinance. 
 
 Since the scope of the police power of the states is 
 largely a federal question, this declaration, however 
 unsupported by argument, must be taken as settling 
 the proposition that a prohibition upon the emission 
 of dense smoke in cities is a proper exercise of the police 
 power. 
 
 It would be interesting to analyze and compare the 
 smoke prevention laws and ordinances, which are now 
 found in most cities,^^ and to discuss some of the difiQ- 
 cult administrative problems that have arisen in con- 
 nection with their enforcement. Sufhce it to say that 
 while considerable progress has been made, the smoke 
 problem has by no means been completely solved in 
 any city. 
 
 Billboard regulations 
 
 In the opinion of many persons one of the most objec- 
 tionable features of the modern American city is the 
 unsightliness of our increasingly flamboyant billboards. 
 '* Modern civic art," says a recent commentator, ** coming 
 to the advertising problem, should feel not hostility, 
 
 ^ See Flagg, City Smoke Ordinances and Smoke Abatement, Bulletin No. 
 49, United States Bureau of Mines, 1912. 
 
SMOKE AND BILLBOARDS 77 
 
 but the thrill of opportunity. " ^^ It seems needless to say, 
 however, that it requires unusual optimism to preserve 
 one's thrill of opportunity if the rights of private prop- 
 erty are to be regarded as standing irrevocably in the 
 way of transforming that opportunity into realization. 
 Numerous cities have attempted to deal with one or 
 more aspects of the billboard problem. It may be put 
 down at the outset that, although courts have some- 
 times in the course of their opinions referred to the un- 
 sightliness of billboards, no court has as yet sustained 
 a billboard ordinance predicated solely upon aesthetic 
 grounds. On the contrary, every such ordinance has been 
 declared invalid. Thus, an ordinance prohibiting gener- 
 ally the posting of advertisements upon fences enclos- 
 ing private property or prohibiting the erection of signs 
 upon private property has been held void in New York^^ 
 and New Jersey.^^ So a regulation of the Boston park 
 commissioners prohibiting the maintenance of business 
 signs so near a parkway as to be plainly visible to the 
 naked eye of persons in the parkway was held by the 
 supreme court of Massachusetts to be a taking of pri- 
 vate property for public use without compensation. ^^ 
 Even a law prohibiting advertisements upon the stately 
 palisades of the Hudson River was recently declared by 
 the supreme court of New Jersey to be an invalid in- 
 vasion of private property rights. ^^ More than this, the 
 courts have declared void a number of regulations which 
 aimed at the limitation or suppression of billboards 
 
 '* Robinson, Modern Civic Art, p. 152. 
 
 ^^ People V. Green, 85 N. Y. App. Div. 400 (1903). 
 
 36 Bill Posting Co. v. Atlantic City, 71 N. J. L. 72 (1904). 
 
 ^"^ Commonwealth v. Boston Advertising Co., 188 Mass. 348 (1905). 
 
 38 State V. Lamb, (N. J.) 98 Atl. 459 (1916). 
 
78 CITY PROGRESS AND THE LAW 
 
 Upon the ground that aesthetic considerations were ap- 
 parent even though they were not expressly put for- 
 ward.^^ Indeed, numerous courts have unquaHfiedly 
 declared that legislation for aesthetic purposes is wholly 
 beyond the scope of the police power. To quote from 
 a single opinion among many, the supreme court of 
 California has expressed the following views upon this 
 subject :*° 
 
 Except for the limited exemption conferred by Section 3, the ef- 
 fect of the ordinance is to absolutely prohibit the erection or mainte- 
 nance of billboards for advertising purposes.- There is no attempt 
 to restrict the operation of the enactment to billboards that may be 
 insecure or otherwise dangerous, or to advertising that may be 
 indecent. The town trustees have undertaken to make criminal the 
 maintenance of any billboard, however securely it may be built, and 
 however unobjectionable may be the advertising matter displayed 
 upon it. Such prohibition, involving a very substantial interfer- 
 ence with the rights of property, can be justified, if at all, only 
 to the extent that the subject-matter of the legislation is embraced 
 within the police power of the state. Bearing in mind that the 
 ordinance does not purport to have any relation to the protection of 
 passers-by from injury by reason of unsafe structures, to the diminu- 
 tion of the hazard of fire, or to the prevention of immoral displays, 
 we find that the one ground upon which the town council may be 
 thought to have acted is that the appearance of billboards is, or may 
 be, offensive to the sight of persons of refined taste. That the pro- 
 motion of aesthetic or artistic considerations is a proper object of 
 governmental care will probably not be disputed. But, so far as we 
 are advised, it has never been held that these considerations alone 
 
 3^ City of Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285 (1905); 
 Varney & Green v. Williams, 155 Cal. 318 (1909); Bryan v. City of Chester, 
 212 Pa. 259 (1905); State v. Whitlock, 149 N. C. 542 (1908); Crawford v. 
 City of Topeka, 51 Kan. 756 (1893); City of Chicago v. Gunning System, 
 214 111. 628 (1905); People ex rel. Wineburgh v. Murphy, 195 N. Y. 126 
 (1909); State V. Lamb, (N.J.) 98 Atl. 459 (1916); Haller Sign Works v. 
 Training School, 249 111. 436 (1911). 
 
 *° Varney & Green v. Williams, 155 Cal. 318 (1909)- 
 
SMOKE AND BILLBOARDS 79 
 
 will justify, as an exercise of the police power, a radical restriction of 
 the right of an owner of property to use his property in an ordinary 
 and beneficial way. Such restriction is, if not a taking, pro tanto 
 of the property, a damaging thereof, for which, under Article I, 
 Section 14, Constitution, the owner is entitled to compensation. 
 
 It goes without saying that billboards may in the 
 interest of public morals be prohibited from carrying 
 indecent or obscene representations ; and that they may 
 be regulated as to their location and construction in the 
 interest of the public safety. However, in the earlier 
 cases dealing with such regulations the courts were 
 earnest to see that the requirements imposed had a very 
 definite relation to such public purposes. Thus in Kan- 
 sas an ordinance which required that every billboard 
 and fence used for advertising purposes should, if it 
 were ten feet in height, be erected fifteen feet back of 
 the street line, was held void. ''Regulation may be 
 made," said the court, 'with reference to the manner of 
 construction so as to insure safety, but the prohibition 
 of the erection of structures upon the lot lines, however 
 safe they might be, would be an unwarranted invasion 
 of private rights. "^^ The same conclusion was reached 
 by the New Jersey ^^ ^nd the North Carolina ^^ courts in 
 cases involving the validity of ordinances that prohib- 
 ited billboards within ten feet of the street line regard- 
 less of the stability of their construction. So, in Colo- 
 rado, a Denver ordinance was held invalid which lim- 
 ited billboards to twenty-five feet in length and eight 
 feet in height, and required a setback of ten feet from 
 the street line and the consent of adjoining lot owners 
 
 *i Crawford v. City of Topeka, 51 Kan. 756 (1893). 
 
 ** City of Passaic v. Paterson Bill Posting Co., 72 N, J. L. 285 (1905). 
 
 « State V. Whitlock, 149 N. C. 542 (1908). 
 
8o CITY PROGRESS AND THE LAW 
 
 and of residents on the opposite side of the street."*^ 
 The first case on this subject in New York involved the 
 validity of an ordinance of the city of Rochester which 
 prohibited the erection of a billboard exceeding six feet 
 in height unless by express permission of the common 
 council. This ordinance, which did not absolutely pro- 
 hibit billboards of greater height, was upheld/^ But in 
 a later case the New York court of appeals refused to 
 sustain an ordinance of the city of New York which 
 limited to nine feet the height of so-called "sky-signs" 
 erecjted over or above buildings or walls.^*^ In the view 
 of the court this limitation bore no reasonable relation to 
 the safety of the public. The Rochester case was dis- 
 tinguished, apparently on the ground that the require- 
 ment of a permit from the council for a billboard more 
 than six feet high was merely a provision in the interest 
 of public safety. 
 
 In 191 1 was decided the very important case of the 
 St. Louis Gunning Advertising Company v. City of St. 
 Louis,^^ which may doubtless be said to have marked a 
 turning point in the attitude of the courts toward bill- 
 board regulation. The ordinance in question limited the 
 height of billboards to fourteen feet and their maximum 
 area to 500 square feet, and required that they should 
 be erected fifteen feet back of the street line, that their 
 ends should approach not nearer than six feet to any 
 
 ^CurranBillPosting&DistributingCo.i;. City of Denver,47Col. 221(1910). 
 
 4^ City of Rochester v. West, 164 N. Y. 510 (1900). A similar Buffalo 
 ordinance was sustained in Gunning System v. City of Buffalo, 75 N. Y. App. 
 Div. 31 (1902), and Whitmier v. City of Buffalo, 118 Fed. 773 (1902). See 
 also People ex rel. Standard Bill Posting Co.z/. Hastings, 207 N. Y. 763 (1912), 
 sustaining a similar ordinance of Newburgh. 
 
 4^ People ex rel. Wineburgh v. Murphy, 195 N. Y. 126 (1909). 
 
 ^^235 Mo. 99 (iQii)- 
 
SMOKE AND BILLBOARDS • 8i 
 
 building or side line of the lot, nor nearer than two feet 
 to any other billboard, and that there should be a clear- 
 ance of four feet between their lower edge and the 
 ground. It is manifest that these restrictions were 
 somewhat severe; but the ordinance was sustained in 
 its entirety, and a number of new grounds were as- 
 signed for including such a regulation within the scope 
 of the police power. It was pointed out that in addi- 
 tion to the dangers to the public safety due to unstable 
 construction, billboards offered hiding places and re- 
 treats for criminals and all classes of miscreants. They 
 increased fire hazards because of the collection of in-- 
 flammable rubbish behind them, and they impeded the 
 work of firemen in extinguishing fires. The public 
 morals of the community were affected not only by the 
 character of the posters but also by the amount of 
 immorality that was carried on behind them. The 
 public health was also jeopardized by the kind and 
 amount of filth that was deposited in the rear of bill- 
 boards. On the ground of morals and health, therefore, 
 as well as public safety, the ordinance under review was 
 sustained in an elaborate opinion in which the previous 
 cases upon the subject were exhaustively analyzed. 
 
 It may be freely admitted that the picture of bill- 
 board evils was not greatly overdrawn in the opinion 
 that was handed down, and that the requirement of an 
 opening at the side line and a four-foot space between 
 the ground and the lower edge of such a structure was 
 wholly reasonable. It is, nevertheless, difBcult to see 
 how these evils were in any wise affected by the some- 
 what onerous limitations upon the height and area of 
 billboards or by the requirements in respect to the dis- 
 
82 CITY PROGRESS AND THE LAW 
 
 tance back of the street line. Surely it must be con- 
 ceded that an entirely safe structure of greater height 
 and area than that allowed by the ordinance could be 
 erected upon the street line, and that the public health 
 and morality would not be advanced by any of these 
 three requirements. One can scarcely escape the con- 
 clusion that the court, being convinced of the general 
 objectionableness of these monstrosities, and being at 
 the same time unwilling to declare unreservedly that 
 the police power might be used for aesthetic purposes, 
 was, nevertheless, ready to sustain the ordinance with- 
 out too close an analysis. Indeed, the learned judge 
 expressed the "individual opinion," although the case 
 was not decided on so broad a ground, ''that this class of 
 advertising as now conducted is not only subject to 
 control and regulation by the police power of the state, 
 but that it might be entirely suppressed by statute, and 
 that, too, without offending against either the state or 
 federal constitution." 
 / Prior to the decision of this St. Louis case, an abso- 
 lute limitation upon the height of billboards — and that, 
 a limitation to six feet — had been sustained in only 
 one important case.^^ Since that date, however, the 
 decision in the St. Louis case has been reaffirmed in 
 Missouri, ^^ and somewhat similar ordinances have 
 been upheld in North Carolina, ^^^ Texas, ^^ Rhode 
 
 ^^ In re Wilshire, 103 Fed. 620 (1900). 
 
 *^ Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659 
 191 2); limiting height to twelve feet, requiring a twelve-foot setback, a two- 
 foot clearance, a three-foot opening at any wall or fence, and a permit. 
 
 ^° State V. Staples, 157 N. C. 637 (1911); requiring billboards to have a 
 clearance of twenty-four inches above the ground. 
 
 "JE« parte Savage, 63 Tex. 285 (191 1); limiting height to twelve feet, 
 and requiring a three-foot clearance and a setback of five feet. 
 
SMOKE AND BILLBOARDS 83 
 
 Island,^2 and Wisconsin.^^ It remained, however, for the 
 supreme court of Illinois to permit the carrying of bill- 
 board regulation one step further by a decision handed 
 down in December, 1914.^^ This case involved the va- 
 lidity of a provision in an ordinance of the city of Chi- 
 cago which prohibited the erection of billboards ''in any 
 block or any public street in which one-half of the build- 
 ings on both sides of the street are used exclusively for 
 residence purposes without first obtaining the consent, 
 in writing, of the owners or duly authorized agents of 
 said owners owning a majority of the frontage of the 
 property, on both sides of the street in the block." 
 This provision, of course, placed in the hands of prop- 
 erty owners the absolute power to defeat the erection 
 of a billboard in a block given over primarily to resi- 
 dences. 
 
 A very similar ordinance, which prohibited the erec- 
 tion of billboards along any boulevard or pleasure drive, 
 or street in which three-fourths of the buildings were 
 residences, without the consent of three-fourths of the 
 residents and property owners in the block in which the 
 board was to be erected, had previously been declared 
 
 "Horton v. Old Colony Bill Posting Co., (R. I.) 90 Atl. 822 (1914), 
 limiting "sky signs" to nine and one-half feet in height (eleven and one-half 
 if on supports), twenty feet in length, with open spaces at the ends; and 
 limiting ground signs to the same height £ind to thirty-six feet in length, 
 and requiring a setback, under certain conditions of construction, equal 
 to the height of boards over six feet high, and a two-foot opening between 
 billboards. 
 
 " Cream City Bill Posting Co. v. City of Milwaukee, 158 Wis. 86 (1914); 
 requiring a clear space at the ends of all roof and coping signs (for firemen) , 
 and for ground signs a clearance of not less than three nor more than ten 
 feet, construction of incombustible material within the city fire limits, and 
 strength to withstand wind pressure of forty pounds. This ordinance was 
 sustained even as to its retroactive application. 
 
 " Thomas Cusack Co. v. City of Chicago, (111.) 108 N. E. 340 (1914). 
 
84 CITY PROGRESS AND THE LAW 
 
 void by the Illinois court.^^ "The purpose,'* said the 
 court, "seems to be mainly sentimental, and to prevent 
 sights which may be offensive to the aesthetic sensi- 
 bilities of certain individuals." An exercise of the police 
 power for such a purpose could not be sustained. So 
 also, and for the same reason, a statute which uncon- 
 ditionally prohibited the erection of signs for advertis- 
 ing purposes within five hundred feet of any park or 
 boulevard had been invalidated by the same court.^^ 
 But the above-mentioned provision of the latest ordi- 
 nance on this subject was upheld, although the previous 
 cases were not overruled but "distinguished". The 
 court argued that since residence districts are "not so 
 well protected with fire extinguishing apparatus" and 
 are "not afforded as full police protection as other dis- 
 tricts," and since billboards "increase the hazards of 
 fire" and offer "protection to disorderly and lawbreaking 
 persons," regulations peculiarly applicable to residence 
 districts were justifiable. Reliance was also placed, as 
 in the St. Louis case, upon the relation of billboards to 
 public health and to public morals. As to the require- 
 ment of the consent of the property owners the court 
 said that "in respect to occupation and structures, the 
 location and maintenance of which are subject to reg- 
 ulation under the police power of the municipality, a 
 requirement of frontage consents of property owners, 
 within reasonable limits, is a proper mode of exercising 
 (^ the power of regulation." It is manifest, however, that 
 I upon the line of argument pursued by the court an 
 absolute prohibition of billboards in residential districts 
 
 ^ City of Chicago v. Gunning System, 214 111. 628 (1905)- 
 " Haller Sign Works v. Training School, 249 111. 436 (191 1). 
 
SMOKE AND BILLBOARDS 85 
 
 could be sustained. This permit to erect with the prop- 
 erty owners' consent was merely a concession in miti- 
 gation of the complete piohibition that was possible 
 under the police power. 
 
 In this case the court carefully avoided resting upon 
 aesthetic consideration. It is submitted, nevertheless, 
 that every one of the purposes mentioned by the court 
 as being within the purview of the provision in question 
 could have been accomplished by regulation short of 
 prohibition, with or without the consent of property 
 owners. The requirement that billboards be con- 
 structed of fireproof materials, without obstructive 
 supports, and with sufficient clearance above the ground 
 to prevent the harboring of lawbreakers and immoral 
 persons, or the collection of inflammable rubbish or 
 filth would have accomplished every specific purpose 
 mentioned by the court. Again, therefore, it must be 
 concluded that the court was actually influenced by 
 considerations broader than those that were actually 
 put forward. 
 
 The decision in this Illinois case was affirmed by the 
 United States Supreme Court upon grounds even 
 broader than those advanced by the supreme court of 
 Illinois.^^ Referring to the evidence in respect to in- 
 sufficient fire and police protection in residence districts, 
 which the Illinois court held to have been erroneously 
 excluded at the trial, the supreme court declared with- 
 out reserve: 
 
 Neglecting the testimony which was excluded by the trial court, 
 there remains sufficient to convincingly show the propriety of 
 putting billboards, as distinguished from buildings and fences, 
 
 67 Thomas Cusack Co. v. City of Chicago, 242 U. S. 526 (1917). 
 
86 CITY PROGRESS AND THE LAW 
 
 in a class by themselves (St. Louis Gunning Advertising Co. v_ 
 St. Louis, 235 Mo. 99, 137 S. W. 929), and to justify the pro- 
 hibition against their erection in residence districts of a city in 
 the interest of the safety, morality, health, and decency of the com- 
 munity. 
 
 The court evidently did not think it necessary to dis- 
 cuss whether these several interests could or could not 
 be protected by regulation short of prohibition. In 
 respect to the consent of property owners the court 
 went on : 
 
 The claim is palpably frivolous that the validity of the ordinance 
 is impaired by the provision that such billboards may be erected in 
 such districts as are described, if the consent in writing is obtained of 
 the owners of a majority of the frontage on both sides of the street in 
 any block in which such billboard is to be erected. The plaintiff in 
 error cannot be injured, but obviously may be benefited, by this 
 provision, for without it the prohibition of the erection of such bill- 
 boards in such residence sections is absolute. He who is not injured 
 by the operation of a law or ordinance cannot be said to be deprived 
 by it of either constitutional right or of property. Tyler v. Judges of 
 Ct. of Registration, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. 
 Rep. 206; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 
 58 L. ed. 713, 34 Sup. Ct. Rep. 359. To this we may add that such a 
 reference to a neighborhood of the propriety of having carried on 
 within it trades or occupations which are properly the sub- 
 ject of regulation in the exercise of the police power is not 
 uncommon in laws which have been sustained against every pos- 
 sible claim of unconstitutionality, such as the right to maintain 
 saloons (Swift v. People, 162 111. 534, 33 L. R. A. 470, 44 N. E. 528), 
 and as to the location of garages (People ex ret. Busching v. Erics- 
 son, 263 111. 368, L. R. A. 1915 D, 607, 105 N. E. 315, Ann. Cas. 
 191 5 C, 183). Such treatment is plainly applicable to offensive 
 structures.^3 
 
 ^' The case was distinguished from Eubank v. City of Richmond, 226 
 U. S. 137 (191 2), on the ground that in that case the ordinance permitted 
 
SMOKE AND BILLBOARDS 87 
 
 The judgments reached in these recent cases are, 
 without doubt, eminently wise and proper. They give 
 high hope for the future possibiHties of sensible control 
 over ill-placed and garishly offensive billboards. At the 
 same time, there may be cause for regret that it has 
 seemed necessary to permit the partial suppression of 
 billboards by more or less specious indirection — by reg- 
 ulations that are manifestly largely in the nature of 
 subterfuges. This brings us to consider a few of the 
 suggestions that have been put forward as substantial 
 grounds upon which billboards might be strictly reg- 
 ulated or suppressed. It has been pointedly said that 
 since offensive noises and odors may be restrained under 
 the police power, thus protecting the nose and the ear, 
 a similar protection to the eye would only carry a 
 recognized principle to further application.^^ There is, 
 perhaps, considerable force in this analogy. It should 
 be noted, however, that noisy and odoriferous estab- 
 lishments, where they are not regarded as merely private 
 nuisances, are prohibited as public nuisances primarily 
 as to their location, and that the essence of their 
 value does not ordinarily depend upon a particular site. 
 Moreover, the offensive noise or odor is a collateral 
 incident rather than a prime purpose. In the case of 
 billboards, on the other hand, value arises essentially 
 from location ; the meeting of the eye, whether offensive 
 or not, is not an incident but the whole purpose. A 
 prohibition in either case destroys an element of prop- 
 
 two-thirds of the lot owners to impose restrictions in the nature of a building 
 line upon other property owners in this block, while this ordinance "permits 
 one-half of the lot owners to remove a restriction [which might have been 
 made absolute] from the other property owners." Infra, 111-113. 
 ^' Freund, Police Power, p. 166; 20 Harvard Law Review, 35. 
 
88 CITY PROGRESS AND THE LAW 
 
 erty value; but in the case of billboards it also destroys 
 a business.®^ 
 
 Another theory that has been offered is that land is 
 valuable for building purposes, not because of anything 
 inherent in the land, but because of its * 'projection 
 value" into the street and upon the land of other per- 
 sons. Since the government is competent to control 
 the uses of the streets and to prevent trespass upon 
 private property, it is urged that the government can 
 upon the same ground control this "projection value" — 
 that it can, in other words, prohibit a landowner from 
 "projecting" the sight of an advertisement into the 
 streets or upon others' property. ^^ Of course the logic 
 of this theory, as premise for a rule of law, would be to 
 recognize in the government practically complete power 
 to control the uses of private property in the interest of 
 community aesthetics. An inartistic building fagade 
 projects itself into the street no less than a billboard; 
 it may be quite as offensive. 
 
 Still another line of argument, which cannot be fully 
 explained here, proceeds from the premise that private 
 property rights are of two kinds, "permissive" and "pro- 
 tected," and that while a permissive right can be exer- 
 cised, a protected right, which consists of a right of 
 
 *" Professor Freund argues on the other side that "offensive manufactures 
 are useful, and the offense unintentional and inevitable, whereas in the case 
 of an advertisement the owner claims the right to obtrude upon the public 
 an offensive sight which they do not want, and which but for this undesired 
 obtrusion would not be of the slightest value to him." The strength of this 
 argument depends largely upon the definition of the word "useful." Adver- 
 tisements are certainly "useful" as a medium of business — perhaps quite as 
 useful, economically speaking, as are certain manufactures. 
 
 '1 See remarks of Mr. Adam Emory Albright in Bulletin of the City Club 
 of Chicago, Dec. i6, 1912. 
 
SMOKE AND BILLBOARDS 89 
 
 possession and a right in the physical condition of the 
 property, cannot be exercised although it can be vio- 
 lated. ^^ It is urged that the constitutional prohibition 
 against the taking of private property for a public pur- 
 pose without just compensation applies only to pro- 
 tected rights. Under this view billboard regulations or 
 suppression may be sustained as a proper exercise of 
 the power of the government to regulate or withdraw 
 that which it permits, and to create new protected 
 rights such as the right of mental security. The police 
 power has nothing to do with the matter unless prac- 
 tically the entire law of wrongs be considered as de- 
 pendent upon that power. 
 
 Finally may be mentioned the argument that bill- 
 boards affect the value of adjacent property to its dis- 
 advantage, and that the police power may be exercised 
 in the interest of stabilizing realty values. At this point 
 it is sufficient to remark that the exercise of the police 
 power for this purpose has not as yet been accepted by 
 the courts.®^ 
 
 In a case decided by the supreme court of the Philip- 
 pines ^^ in December, 191 5, a statute authorizing the 
 removal of billboards was upheld upon the express 
 ground that the police power may be exercised for 
 aesthetic purposes. But the theory of ''projection value" 
 and the argument that offensive sights are in the same 
 category as offensive noises and odors were also ad- 
 vanced. Since ''the real and sale value of the billboard 
 
 ^2 Terry, Advertising Signs on Properly, in 24 Yale Law Journal, Nov. 
 1914, p. I. 
 
 «8 Infra, 1 19-123, 
 
 «* Churchill v. Collector of Internal Revenue, 14 Official Gazette of the 
 Philippines, p. 383, February 16, 19 16. 
 
90 CITY PROGRESS AND THE LAW 
 
 is its proximity to the public thoroughfares," its regula- 
 tion or destruction "is not so much a regulation of 
 private property as it is a regulation of the use of the 
 streets and other public thoroughfares.'* And since the 
 suppression of noises and smells, although "usually 
 upheld on the theory of safeguarding the public health," 
 have, in fact, "little bearing upon the health of the 
 normal person, but a great deal to do with his peace of 
 mind," it is "quite demonstrable" that "proper 
 ministration" to his sense of sight "conduces as much 
 to his contentment as the care bestowed upon the 
 senses of hearing or smell, and probably as much as 
 both together." In respect to the contrary views 
 expressed by American state courts, the Philippine court 
 declared : 
 
 It may be that the courts in the United States have committed 
 themselves to a course of decisions with respect to billboard adver- 
 tising the full consequences of which were not perceived, for the rea- 
 son that the development of the business has been so recent that the 
 objectionable features of it did not present themselves to the courts 
 or to the people. We in this country have the benefit of the experi- 
 ence of the people of the United States and may make our legislation 
 preventive rather than corrective. 
 
 It seems fairly probable that in the course of time 
 American courts will reverse their earlier decisions and 
 frankly include aesthetics among the subjects for which 
 the police power may be properly exercised. Already 
 there are signs of this eventuality. As the supreme 
 court of Maryland remarked in 1908, "it may be that 
 in the development of a higher civilization, the culture 
 and refinement of the people has reached the point 
 where the educational value of the fine arts, as expressed 
 
SMOKE AND BILLBOARDS 91 
 
 and embodied in architectural symmetry and harmony, 
 is so well recognized as to give sanction, under some 
 circumstances, to the exercise of this power even for 
 such purposes."*^ 
 
 •* Cochran r. Preston, 108 Md. 220 (is>o8). See also Attorney General v. 
 Williams. 174 Mass. 476 (1899) at pp. 479* 480; ii^a, 94, 107. 
 
CHAPTER IV 
 
 CITY PLANNING— BUILDING HEIGHTS 
 AND ZONING 
 
 There are at least three policies connected with the 
 modem movement for the better planning of cities 
 which give rise to interesting and important questions 
 of law. One of these is the regulation of the heights of 
 buildings; another is the zoning or districting of cities 
 for various purposes; and the third is the condemnation 
 of property in excess of what is actually needed for 
 specific public improvements. 
 
 Limitation on the height of buildings 
 
 More than thirty years ago the legislature of the 
 state of New York enacted what was probably the 
 first law in the United States dealing with the subject 
 of the height to which buildings might be erected in 
 cities. This statute provided that in the city of New 
 York no dwelling house or house to be used as a dwelling 
 for more than one family should "exceed seventy feet 
 upon all streets and avenues not exceeding sixty feet 
 in width and eighty feet upon all streets and avenues 
 exceeding sixty feet in width. "^ Since that date a large 
 number of statutes and ordinances have been enacted 
 imposing restrictions upon the heights of buildings in 
 American cities; ^ but these regulations vary in both 
 
 ^ Laws of New York, 1885, ch. 454. 
 
 "^ For statistics of ordinances of this kind see Koester, Modern City Plan- 
 ning and Maintenance, pp. 1 71-174. 
 
BUILDING HEIGHTS AND ZONING 93 
 
 content and purpose. A few of them, as in the case of 
 the early New York law just noted, impose limits on 
 the basis of the use of the building. In others heights 
 are regulated in accordance with the character of con- 
 struction, chiefly in the interest of protection against 
 fire. In a few of them building heights are fixed with 
 reference to location. But a majority of these regula- 
 tions simply impose a maximum limit of height, ex- 
 pressed either in feet or in the number of stories allowed, 
 while in some cases the height within the maximum is 
 further fixed in some ratio to the street width. In 
 general it may be said that American limitations upon 
 building heights are exceedingly liberal — far more so 
 than those usually imposed in European cities. 
 
 Whether limitations of this kind are properly within 
 the scope of the police power has been contested in a 
 few important cases. The New York law of 1885, for 
 example, was before the courts on the question as to 
 whether hotels were included within its terms. On the 
 general proposition of limiting the height of dwelling 
 houses and of flat or apartment houses, which was 
 apparently not at issue in the case, the court was con- 
 tent to say that there was *'no doubt of the competency 
 of the legislature in the exercise of the police power 
 under the constitution to pass such an act."^ A somewhat 
 famous case on this subject was that in which the 
 supreme court of Massachusetts sustained a statute of 
 1898 that limited to ninety feet in height all buildings 
 
 3 People ex rel. Kemp v. D'Oench, iii N. Y. 359 (1888). See also People 
 ex rel. Brown v. Brady, 26 N. Y. Misc. 82 (1899), where it was held that the 
 act of 1885 had not been repealed by acts of 1892, 1896, £ind 1897 requiring 
 fireproof construction for buildings over certain heights. The validity of 
 these later statutes was not questioned. 
 
94 CITY PROGRESS AND THE LAW 
 
 fronting on Copley Square in Boston.^ In this instance 
 the statute provided for compensatory damages; but 
 the court did not hesitate to say that "in view of the 
 kind of buildings erected on the streets about Copley 
 Square and the uses to which some of these buildings 
 are put, it would be hard to say that this statute might 
 not have been passed in the exercise of the police power 
 as other statutes regulating the erection of buildings in 
 cities are commonly passed."^ In the opinion that was 
 written the court very nearly declared that the power 
 of eminent domain, if not indeed the police power, 
 might be exercised in the interest of municipal aesthet- 
 ics. ^ It is probable, however, that the case cannot be 
 said to have gone so far; and it is certain that other 
 Massachusetts cases have denied this proposition, so 
 far at least as the police power is concerned.^ 
 
 Encouraged evidently by the success of this experi- 
 ment with reference to Copley Square, the Massachu- 
 setts legislature provided in 1904 for the general limita- 
 
 * For an account of how this law came to be enacted see Robinson, The 
 Improvement of Towns and Cities, pp. 69, 70. 
 
 ^ Attorney General v. Williams, 174 Mass. 476 (1899). See also Attorney- 
 General V. Williams, 178 Mass. 330 (1901). 
 
 ^ After a very general discussion concerning aesthetic considerations in 
 parks the courts said: "It is argued by the defendants that the Legislature 
 in imposing this statute was seeking to preserve the architectural symmetry 
 of Copley Square. If this is a fact, and if the statute is merely for the bene- 
 fit of individual property owners, the purpose does not justify the taking 
 of a right in land against the will of the owner. But if the Legislature, for 
 the benefit of the public, was seeking to promote the beauty and attractive- 
 ness of a public park in the capital of the Commonwealth and to prevent 
 unreasonable encroachments upon the light and air which it had previously 
 received, we cannot say that the law-making power might not determine 
 that this was a matter of such public interest as to call for an expenditure 
 of public money, and to justify the taking of private property." 
 
 ^ Commonwealth v. Boston Advertising Co., 188 Mass. 348 (iQOS); 
 Welch V, Swasey, 193 Mass. 364 (1907)- 
 
BUILDING HEIGHTS AND ZONING 95 
 
 tion of building heights in the city of Boston without 
 any provision for damages. In upholding this law the 
 highest court of the state remarked that the police 
 power could certainly be exercised *'in the interest of 
 the public health, public morals and public safety," 
 and that ''with considerable strictness of definition ^ the 
 general welfare may be made a ground, with others, for 
 interference with rights of property, in the exercise of 
 the police power/'^ **The erection of very high build- 
 ings," said the court, "may be carried so far as materially 
 to exclude sunshine, light and air, and thus to affect the 
 public health. It may also increase the danger to per- 
 sons and property from fire and be a subject for legis- 
 lation on that ground." Denying that the police power 
 could be used ''for purely aesthetic objects," the court, 
 nevertheless, said that if "the primary and substantive 
 purpose of the legislation" is in the interest of such a 
 matter as the public health or safety, ''considerations 
 of taste and beauty may enter in as auxiliary." 
 
 This case was carried to the United States Supreme 
 Court where the views of the Massachusetts court were 
 generally sustained.^ Although particular emphasis was 
 laid upon the matter of fire protection, the court declared 
 broadly that "regulations in regard to the height of 
 buildings, and in regard to their mode of construction 
 in cities, made by legislative enactments for the safety, 
 comfort or convenience of the people and for the bene- 
 fit of property owners generally, are valid. "^^ 
 
 ^ Welch V. Swasey, 193 Mass. 364 (1907). 
 
 ^ Welch V. Swasey, 214 U. S. 91 (1908). 
 
 ^°See also Hudson Water Co. v. McCarter, 209 U. S. 349 (1907), where 
 the court declared, arguendo: "For instance, the police power may limit 
 the height of buildings, in a city, without compensation . . . But if it 
 
96 CITY PROGRESS AND THE LAW 
 
 In a Maryland case it was intimated that a statute 
 limiting to seventy feet the height of buildings fronting 
 on a public square in Baltimore might be sustained on 
 aesthetic grounds.^^ But the court found "a more sub- 
 stantial reason" in the suggestion that the purpose of 
 the law was '*to protect the handsome buildings and 
 their contents in that vicinity, and also the works of art 
 clustered there, from the ravages of fire." And specific 
 reference was made to the damage that resulted from 
 tall buildings in the famous Baltimore fire of 1904. 
 
 Although the decisions upon this subject are not 
 numerous, they are all one way. Moreover, the vast 
 majority of ordinances regulating building heights have 
 never been questioned at all. It may be taken as set- 
 tled, therefore, that limiting the heights of buildings is a 
 proper exercise of the police power in the interest prima- 
 rily of health and safety. It should be remarked, how- 
 ever, that no city has as yet attempted to impose, under 
 the police power, a limit that would affect buildings al- 
 ready constructed. 12 Jt is impossible to say what the at- 
 titude of the courts would be toward such an interference 
 with actual rather than with potential property values. 
 
 Zones from which offensive trades and industries 
 are excluded 
 
 From time immemorial cities have been laid off into 
 districts for governmental and administrative purposes. 
 
 should attempt to limit the height so far as to make an ordinary building 
 lot wholly useless, the rights of property would prevail over the other public 
 interest, and the police power would fail. To set such a limit would need 
 compensation and the power of eminent domain." 
 
 " Cochran v. Preston, io8 Md. 220 (1908). 
 
 ^2 The Copley Square legislation affected a building under construction ; 
 but in this instance damages were allowed. 
 
BUILDING HEIGHTS AND ZONING 97 
 
 Moreover, the policy of creating districts within which 
 certain restrictions are placed upon the private prop- 
 erty is by no means of very recent origin. For many 
 years, for example, most cities have established fire 
 districts within which the erection of wooden buildings 
 has been prohibited and other requirements in respect 
 to building construction have been imposed. Such 
 regulations have been usually sustained as measures 
 adopted in the interest of the public safety; and the 
 reasonableness of establishing districts for this purpose, 
 based upon obvious variations in the congestion of 
 buildings in different parts of the city, has scarcely 
 been questioned. ^^ For a long time, also, cities have 
 exercised the power of abating private nuisances in the 
 form of offensive trades and industries; and specific 
 acts of abatement have often resulted in the relocation 
 of such trades or industries in some other part of the 
 city; for a private nuisance in a thickly settled dis- 
 trict need not necessarily be a nuisance elsewhere. 
 On the same principle specified noxious establishments, 
 if they affect an entire community within the city, 
 may be excluded from a designated district or districts 
 as a public nuisance.^^ As early as 1774, for example, 
 the tanners of New York City were ordered to move out 
 of the congested part of the city. It is, however, only 
 
 " McQuillin, Municipal Corporations, sec. 948 ; City of Olympia v. Man, 
 I Wash. 389 (1890); Mt. Vernon First National Bank v. Sarlls, 129 Ind. 
 201 (1891). 
 
 ^* There is perhaps a slight difference in principle between exclusion from 
 specified districts and assignment to designated limits. If excluded from 
 specified districts, the establishment may yet be abated elsewhere as a 
 private or common law nuisance. If assigned to designated limits, the 
 question may arise as to the power of the city to legalize a nuisance. Freund, 
 Police Powtr, sec. 179. 
 
98 CITY PROGRESS AND THE LAW 
 
 in comparatively recent years that cities have attempted 
 to deal generally with such establishments by the policy 
 of exclusion from districts ; and the courts have invari- 
 ably upheld such regulations as a proper exercise of the 
 police power. Thus an ordinance prohibiting the 
 slaughtering of cattle within certain portions of a city 
 has been sustained in New York.^^ In Indiana an ex- 
 clusion of saloons from the residence sections of cities 
 is valid. ^^ In Illinois ordinances were sustained which 
 prohibited, without the consent of property owners, the 
 maintenance of a public garage in a residence block 
 or in places in which two-thirds of the buildings within 
 a radius of five hundred feet were residences; ^^ and in 
 New York an ordinance prohibiting a public garage 
 within fifty feet of a school was likewise upheld. ^^ So 
 also in Illinois an ordinance prohibiting the keeping of 
 a livery stable in a residence block except upon the 
 consent of a majority of the property owners on 
 both sides of the street has been upheld. ^^ In a 
 recent case sustaining an ordinance prohibiting liv- 
 ery stables within a designated district of Little 
 
 15 Cronin v. People, 82 N. Y. 318 (1880). 
 
 1^ Shea V. City of Muncie, 148 Ind. 14 (1896). 
 
 " People ex rel. Busching v. Ericsson, (111.) 105 N. E. 315 (1914). where 
 the court declared that while a public garage is not a nuisance per se, it "is 
 of such a character that it becomes a nuisance when conducted in particular 
 localities and under certain conditions." People ex rel. Keller v. Village of 
 Oak Park (111.). 107 N. E. 636 (1914). 
 
 18 Matter of Mcintosh v. Johnson, 211 N. Y. 265 (1914)- 
 
 13 City of Chicago v. Stratton, (111.) 44 N. E. 853 (1896). But in Missouri 
 a somewhat similar ordinance, which applied, however, to any block, whether 
 residence or otherwise, was held void. City of St. Louis v. Russell, 116 Mo. 
 248 (1893). Under this ordinance livery stables might have been totally 
 excluded from the city. 
 
BUILDING HEIGHTS AND ZONING 99 
 
 Rock, Arkansas, the United States Supreme Court 
 declared : ^o 
 
 Granting that it [the livery business] is not a nuisance per se, it is 
 clearly within the police power of the state to regulate the business, 
 and to that end to declare that in particular circumstances and in 
 particular localities a livery stable shall be deemed a nuisance in 
 fact and in law, provided this power is not exerted arbitrarily, or 
 with unjust discrimination, so as to infringe upon rights guaranteed 
 by the 14th Amendment. For no question is made, and we think 
 none could reasonably be made, but that the general subject of the 
 regulation of livery stables, with respect to their location and the 
 manner in which they are to be conducted in a thickly populated 
 city, is well within the range of the power of the state to legislate for 
 the health and general welfare of the people. While such regulations 
 are subject to judicial scrutiny upon fundamental grounds, yet a con- 
 siderable latitude of discretion must be accorded to the lawmaking 
 power; and so long as the regulation in question is not shown to be 
 clearly unreasonable and arbitrary, and operates uniformly upon all 
 persons similarly situated in the particular district, the district itself 
 not appearing to have been arbitrarily selected, it cannot be judi- 
 cially declared that there is a deprivation of property without due 
 process of law, or a denial of the equal protection of the laws, within 
 the meaning of the 14th Amendment. 
 
 It seems needless to say, however, that an ordinance 
 of this kind must not create unwarranted discrimina- 
 tions. Thus the California supreme court has recently 
 held void a Los Angeles ordinance establishing a dis- 
 trict from which livery stables were excluded. The 
 ordinance was viewed as being ''oppressive and dis- 
 criminatory in creating a small district in which plaintiff 
 has erected and is maintaining his stable, and prohibit- 
 
 «» Reinman v. Little Rock, 237 U. S. 171 (1915). In Patout Bros. v. Mayor 
 etc. of New Iberia, (La.) 70 So. 616 (1916), a similar ordinance was declared 
 void upon the ground that the city lacked the charter authority to enact 
 such an ordinance. 
 
loo CITY PROGRESS AND THE LAW 
 
 ing him from longer maintaining it, while in other 
 districts, *more thickly populated and densely settled 
 and exclusively devoted to residence purposes', permits 
 for the conduct of a like business are liberally granted, "^i 
 It will be observed that every one of the exclusion 
 ordinances to which attention has been directed might 
 without any violence to reason be readily gathered 
 under one or another of the usual subjects of the police 
 power — the public health, public morals, or public 
 safety. The courts have not always been careful to 
 distinguish between that which is merely offensive and 
 that which is unwholesome and therefore unheal thful. 
 However, even offensiveness that results only from 
 disturbing noises or foul vapors may, not without rea- 
 son, because of their effects upon human nerves or their 
 interference with sleep or their pollution of the air, be 
 regarded as deleterious to health.^^ 
 
 General ''industrial zones 
 
 By ordinance enacted in 191 1 the city of Los Angeles 
 attempted to deal with the subject of noxious indus- 
 tries in a more comprehensive way than had ever 
 before been attempted by any American city. A num- 
 ber of so-called "industrial districts" were estabUshed, 
 and the rest of the city was described as a ''residence 
 district." From this latter district provision was made 
 for the complete exclusion of ''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 
 
 21 Curtis V. City of Los Angeles, (Cal.) 156 Pac. 462 (1916). 
 
 22 Freund, Police Power, sec. 1076. 
 
BUILDING HEIGHTS AKI^ZQNI3^\: ', /- loi 
 
 in the operation of the same, or any hay bam, wood 
 yard, lumber yard, public laundry or washhouse." It 
 was further provided, however, that existing industries 
 operating with steam boilers might continue to operate 
 if they substituted electric motors for steam boilers. 
 Although all business was by no means excluded from 
 the residence district thus created, the ordinance in 
 question was aimed (i) at certain specified industries 
 of a more or less offensive character, (2) at all existing 
 industries in which steam was manufactured by the 
 burning of coal upon the premises, and (3) against the 
 establishment in the future of any manufacturing plant 
 using either steam or electric current. It is highly 
 interesting to inquire as to the fate which this ordinance 
 met at the hands of the courts. 
 
 As far back as 1884 the United States Supreme 
 Court had held that "a prohibition to carry on the 
 washing and ironing of clothes in public laundries and 
 washhouses, within certain prescribed limits of the city" 
 between the hours of ten in the evening and six in the 
 morning was ^'merely a designation of the portion of the 
 city in which the precautionary measures against fire 
 and to secure proper drainage must be taken for the 
 public health and safety. "^3 Regarding such a regula- 
 tion as a proper exercise of the police power for these 
 usual purposes, the court did not discuss. the specific 
 matter of regulation by the district method. In view 
 of this decision it is not surprising that the California 
 supreme court sustained the Los Angeles ordinance 
 in its application to laundries.^^ It was declared in this 
 
 ^ Barbier v. Connolly, 113 U. S. 27 (1884). 
 ^Ex parte Quong Wo, 161 Cal. 220 (1911). 
 
102 CITY PROGRESS AND THE LAW 
 
 first case that arose under the ordinance that "the design 
 of the ordinance here involved was to protect such por- 
 tions of the city of Los Angeles as are devoted princi- 
 pally to residence purposes from the dangers and dis- 
 comfort attendant upon the operation of certain kinds 
 of business which, while not necessarily nuisances per 
 se, have always been recognized as proper subjects of 
 police regulation." In the view of the court the laundry 
 business had a direct relation to the public health. 
 
 Shortly after this decision the ordinance was sustained 
 in its application to a lumber yard.^^ In this second 
 case the court simply relied upon the laundry case and 
 did not discuss the specific subject of the police power 
 which justified the prohibition of lumber yards within 
 residence districts. Had the court been pressed upon 
 this point it is probable that the protection of the 
 public safety against the danger of fire would have been 
 invoked, for it is difficult to see how a lumber yard 
 could have any relation to the public health, unless it 
 were conducted in connection with a mill in which the 
 elements of noise and smoke might have been in- 
 volved. 
 
 The third case that arose involved the application 
 of the ordinance to a brick yard.^^ The court held that 
 the brick business bore a definite relation to the health 
 and comfort of the public. "The burning of brick," it 
 was said, *'is a trade which may, when conducted in 
 close proximity to dwelling-houses, be so offensive to 
 those residing in the vicinity as to constitute a nui- 
 sance." And the court added, ''this is true of all trades 
 
 ' In re Montgomery, 163 Cal. 457 (1912). 
 ^Ex parte Hadacheck, 165 Cal. 416 (1913)- 
 
BUILDING HEIGHTS AND ZONING 103 
 
 which, in their operation, involve the discharge of 
 smoke or offensive odors in the surrounding atmos- 
 phere." This case was carried to the Supreme Court 
 of the United States, where the views of the CaHfornia 
 court were adopted by the highest court of the land." 
 The court said: 
 
 There was a denial of the allegations that the brick yard was con- 
 ducted or could be conducted sanitarily, or was not offensive to 
 health. There were affidavits supporting the denials. In these it 
 was alleged that the fumes, gases, smoke, soot, steam and dust aris- 
 ing from the petitioner's brickmaking plant have from time to time 
 caused sickness and serious discomfort to those living in the vicinity. 
 
 Most of the opinion was devoted to showing that the 
 owner of the brick yard had not proved that the ordi- 
 nance was arbitrary or that, being discriminatory, it 
 deprived him of the equal protection of the laws. On 
 the latter point the court declared that the record did 
 not show that others were permitted to manufacture 
 brick upon similarly situated property, nor did it dis- 
 close that other objectionable businesses were per- 
 mitted within the district. As to whether the ordinance 
 could have gone so far as to prohibit the removal of 
 clay for the purposes of manufacturing bricks else- 
 where, the court reserved judgment.^^ On the general 
 subject of the exercise of the poHce power where, as in 
 this case, it resulted in an obvious destruction of a very 
 
 ^ Hadacheck v. Sebastian, 239 U. S. 394 (1915). 
 
 ^ In Ex parte Kelso, 147 Cal. 609 (1905), it was held that an ordinance 
 prohibiting the operation of a rock or stone quarry within a certain portion 
 of San Francisco was void on the ground that it deprived the owners of 
 property without due process of law. This case was distinguished by the 
 CaHfornia court in Ex parte Hadacheck, supra, on the ground that the 
 owner of the brick yard was not deprived of his right to extract clay. This 
 view was evidently approved by the United States Supreme Court. 
 
104 CITY PROGRESS AND THE LAW 
 
 considerable property right, the court declared as 
 follows : 
 
 It is to be remembered that we are dealing with one of the most 
 essential powers of government, — one that is the least limitable. It 
 may, indeed, seem harsh in its exercise, usually is on some individual, 
 but the imperative necessity for its existence precludes any limita- 
 tion upon it when not exerted arbitrarily. A vested interest cannot 
 be asserted against it because of conditions once obtaining. . . 
 To so hold would preclude development and fix a city forever 
 in its primitive conditions. There must be progress, and if in its 
 march private interests are in the way, they must yield to the good of 
 the community. The logical result of petitioner's contention would 
 seem to be that a city could not be formed or enlarged against the 
 resistance of an occupant of the ground, and that if it grows at all 
 it can only grow as the environment of the occupations that are 
 usually banished to the purlieus. 
 
 Prior to this decision the supreme court of Nebraska 
 had sustained an ordinance that entirely prohibited the 
 erection of brick kilns within the limits of the city of 
 Omaha. 2^ The argument was directed specifically to 
 showing that such an establishment was offensive be- 
 cause of the production of smoke and dust; that it 
 was "an inviting place for tramps in cold weather," who 
 might be ''turned loose on the residents of the neighbor- 
 hood in the outskirts of the city, where police protec- 
 tion may be inadequate;" and that ''the value of resi- 
 dence property in the neighborhood might be damaged by 
 relator's enterprise,'' On the other hand, the Colorado 
 supreme court has declared that an ordinance prohibit- 
 ing the maintenance of a brick yard within twelve hun- 
 dred feet of any residence, without the consent of the 
 owner of such residence, or of any park or school, with- 
 
 29 State ex rel. Krittenbrink v. Withnell, 91 Neb. loi (1912). 
 
BUILDING HEIGHTS AND ZONING 105 
 
 out the consent of the city, was unreasonable and a 
 deprivation of property without due process of law.^® 
 But since this is manifestly a federal question, it must 
 be regarded now as settled by the decision of the 
 United States Supreme Court to the contrary. 
 
 Whether there are any proscriptions in the compre- 
 hensive Los Angeles ordinance which may not be gath- 
 ered under the usual subjects of the police power re- 
 mains yet to be seen. So far as the ordinance applies 
 to coal-consuming industries the protection of the 
 public health may doubtless be invoked on account of 
 the element of smoke. It is difficult to see, however, 
 how a person may be prohibited from using his prop- 
 erty for an industry operated by electric current and 
 otherwise unobjectionable on any of the customary 
 grounds advanced in support of an exercise of the police 
 power. Indeed, so far as the common subjects of the 
 police power are concerned, opinions will doubtless 
 differ as to the reasonableness of excluding some of the 
 specific industries mentioned in the ordinance. A 
 lower court in the state of New York has recently sus- 
 tained an ordinance of Niagara Falls which prohibited 
 the erection or maintenance of any factory within a 
 prescribed residence area without the consent of adja- 
 cent property owners.^i The court cited, as controlling, 
 the authority of the United States Supreme Court in 
 the zoning cases involving livery stables and brick 
 yards.^2 ^g ^^ have had occasion to note, however, the 
 decisions in these cases were expressly rested upon the 
 
 3° City and County of Denver v. Rogers, 46 Col. 479 (1909). 
 *i In re Russell, 158 N. Y. Supp. 162 (1916). 
 
 22 Reinman v. Little Rock, supra, 99; Hadacheck v. Sebastian, supra, 
 103. 
 
io6 CITY PROGRESS AND THE LAW 
 
 protection of the public health. In the New York case 
 there was no evidence whatever that the projected 
 factory would have any relation to the public health; 
 the subject was not even mentioned. Apparently the 
 ordinance was upheld solely upon the ground that *'the 
 location and operation of a factory in these surround- 
 ings would greatly impair the value of property in this 
 section and seriously interfere with its proper enjoyment 
 in the purposes to which it has been heretofore devoted ^ 
 
 However reasonable it may be to regard the protec- 
 tion of property values as a proper subject of the police 
 power, it is sufficient to remark that the other cases 
 involving the exclusion of industries from residence dis- 
 tricts have not been rested wholly or even in large part 
 upon this ground. It is certainly definitely settled, 
 however, that prohibitions may be imposed upon the 
 uses of private property within designated zones or dis- 
 tricts of a city whenever such prohibitions are in the in- 
 terest of the health, safety, or morals of the community; 
 and it is probably fair to say that the concept of what 
 constitutes an offensive or noxious trade or industry 
 has been and is being very considerably widened. ^^ 
 
 Zones for the regulation of building heights 
 
 Apart from the establishment of districts for the 
 exclusion of business that may be classed as more or 
 less offensive in character when carried on in such dis- 
 
 ^^ In very recent years certain southern cities have been divided into 
 districts for the purpose of segregating the residences of white and colored 
 races. State v. Gurry, (Md.) 88 Atl, 546 (1913) ; Acts of Assembly of Virginia, 
 1912, ch. 157. Such regulations involve considerations wholly different 
 from those which we have here under consideration; they may, therefore, 
 be omitted from discussion. 
 
BUILDING HEIGHTS AND ZONING 107 
 
 tiicts, attempts have been made in very recent years to 
 impose upon private property, in accordance with dis- 
 trict lines, restrictions of a somewhat different char- 
 acter. An ordinance such as that enacted in the city 
 of Los Angeles cannot, of course, fail to have a very 
 pronounced effect upon the sectional development of 
 the city. At the same time its effect will obviously be 
 limited. In connection with proposals for city planning, 
 it has been urged that cities should be divided into dis- 
 tricts and restrictions imposed, first, with reference to 
 the heights of buildings, second, with reference to the 
 part of the lot or lots that may be occupied by build- 
 ings, and third, with reference to the uses to which 
 property may be put, regardless of offensiveness. 
 
 It has already been pointed out that the courts have 
 universally sustained, as a measure in the interest of 
 public health and safety, limitations upon the heights 
 of buildings. In most of the early cases upon this sub- 
 ject no specific point was made in respect to the dis- 
 tricting feature. In the case, however, involving a 
 limitation of the height of buildings around Copley 
 Square in Boston the court was evidently influenced to 
 a very large extent by the character of the district to 
 which this limitation was made to apply.^^ So also in 
 the Maryland case already mentioned, the court de- 
 clared that the limitation of the height of buildings sur- 
 rounding a public square in Baltimore was to "prevent 
 the multiplication of such buildings in this neighbor- 
 hood and the increased danger from fire attendant 
 thereon."^^ 
 
 "Attorney General v. Williams, 174 Mass. 476 (1899), supra, 91, 94. 
 85 Cochran v. Preston io8 Md. 220 (1908), supra, 91, 96. 
 
lo8 CITY PROGRESS AND THE LAW 
 
 In a later Massachusetts case,^^ likewise mentioned 
 above, the court was compelled to consider more defi- 
 nitely the competence of the legislature to regulate the 
 heights of buildings by districts, the statute having pro- 
 vided for the division of the city for this purpose into 
 business and residence districts. In support of the 
 establishment of districts for such a purpose, the court 
 said : 
 
 The value of the land and the demand for space in those parts of 
 Boston where the greater part of the buildings are used for purposes 
 of business and commerce, is such as to call for buildings of greater 
 height than are needed in that part of the city where the greater part 
 of the buildings are used for residence purposes. It was, therefore, 
 reasonable to provide in the statute that buildings might be erected 
 to a greater height in the former parts of the city than in the latter, 
 even if some of the streets in the former are narrower than those in 
 the latter. 
 
 This case, as we have seen, was carried to the Supreme 
 Court of the United States ^^ where in addition to con- 
 firming in a general way the views expressed by the 
 Massachusetts court, the court elaborated at some 
 length upon the superior fire protection that is usually 
 afforded in business districts, as well as upon the fact 
 that few women and children are found in such dis- 
 tricts and that few people sleep in such districts. **An 
 undiscovered fire at night," said the court, ''might cause 
 great loss of life in a very high apartment house." In 
 other words, the court of highest resort seemed eager 
 to find justification for the regulation of the heights 
 of buildings by districts in the interest of protecting 
 the public safety. 
 
 36 Welch V. Swasey, 193 Mass. 364 (1907), supra, 95. 
 87 Welch V. Swasey, 214 U. S. 91 (1908), supra, 95. 
 
BUILDING HEIGHTS AND ZONING 109 
 
 Since, as we have had occasion to observe, the regu- 
 lation of heights of buildings has been sustained by 
 reference to the need for protecting the public health 
 and public safety, the cases which sustain the power 
 of the city to create districts for such a purpose as 
 this are in fact entirely in line with those which sanction 
 the creation of districts for the exclusion of offensive 
 trades and industries. Justification for the exercise of 
 the police power is found in one of the usual subjects 
 of such power; the establishment of districts is merely 
 a method of exercising the power. We have had occa- 
 sion to observe also that the prohibition of billboards 
 in residence districts has been sustained upon precisely 
 the same general line of reasoning.^^ In other words, it 
 may be set down as a fairly established proposition that, 
 in spite of the popular hue and cry about the zoning 
 or districting of cities, the establishment of zones or 
 districts has little or nothing to do with the legal prin- 
 ciples involved. The primary question of law is 
 whether the subject sought to be controlled is or is not 
 a proper subject of control under the police power. If 
 it is such a subject, the zoning of the city is merely a 
 matter of detail or method, to which the courts have 
 given and probably will give little attention unless 
 there be evidence of unreasonableness or arbitrariness. 
 
 Zones for the establishment of building lines 
 
 A limitation upon the portion of the lot that may be 
 
 occupied by a building may certainly in some instances, 
 
 as in the case of tenement houses, be justified as a 
 
 measure in the interest of the public health.^^ The 
 
 38 Supra, 84-86. 
 
 3^ Freund, Police Power, sec. 128. 
 
no CITY PROGRESS AND THE LAW 
 
 protagonists in the movement for city planning, how- 
 ever, are far from being contented with so moderate a 
 restriction as this. Every one probably recognizes 
 that, so far at least as appearances are concerned, limi- 
 tations upon the percentage of lots that may be used 
 for building purposes, or requirements in respect to the 
 detachment of houses, or in respect to the distance of 
 houses back of the street line would be, broadly speak- 
 ing, "advantageous" in many residence neighborhoods. 
 Many a city residence block has been ''spoiled" by the 
 erection of a building in total disregard of the character 
 and location of adjacent buildings and of the not wholly 
 unreasonable wishes of neighboring owners. Here, 
 however, we run squarely upon the contest between the 
 rights of the individual and the rights of the immediate 
 community or of the public at large — a contest, in 
 other words, between the constitutional protection of 
 private property rights and the police power. 
 
 In all of the cases that have thus far been adjudicated, 
 decision has been reached against the power of the city 
 to impose regulations of this kind. Thus in Missouri 
 it was held that an ordinance of St. Louis which fixed 
 a building line at a distance of forty feet from the 
 street line on Forest Park Boulevard was void be- 
 cause it deprived the owner of property without 
 due process of law.^° Without considering the ordi- 
 nance in specific reference to the police power, the 
 court said: 
 
 The day before the ordinance went into operation, defendant had 
 the unquestionable right to build at will upon his lot; the day after- 
 wards he was as effectually prevented from building on the 40-foot 
 
 *° St. Louis V. Hill, 116M0. 527 (1893). 
 
BUILDING HEIGHTS AND ZONING ill 
 
 strip, except under peril of punishment, as if the city had built a wall 
 around it, and this too without any form of notice, any species of 
 judicial inquiry, or any tender of compensation. If this is not a 
 "taking" of property by mere arbitrary edict, it is difficult to 
 express in words the meaning which should characterize the act of 
 the city. 
 
 So also in New York a statute was held void which 
 required all buildings to be set back thirty feet on cer- 
 tain parts of Eastern Parkway in Brooklyn.^i The court 
 did not even mention the police power, but held that the 
 city had undertaken to control an easement in this 
 thirty feet of property and that such an easement ''is a 
 constitutional right of property which cannot be taken 
 from its owner without just compensation." In a recent 
 West Virginia case it was held that an ordinance estab- 
 lishing a building line on a particular street was an un- 
 constitutional exercise of the police power. ^^ "Under 
 the present status of the law" the court refused to ''go 
 counter to the great weight of authority and take 
 advance ground on the question of the police power to 
 regulate and control the use of private property, 
 based on mere aesthetic ground and having no reason- 
 able reference to the safety, health, morals and general 
 welfare of the public at large." Whether the power of 
 eminent domain could be used for such purpose, the 
 court expressly left open for future determination. 
 
 A recent case before the United States Supreme 
 Court — that of Eubank v. Richmond ^^ — may be 
 appropriately considered in this connection, although 
 it did not apparently involve any question of districting. 
 
 " People ex. rel. Dilzer v. Calder, 89 N. Y. App. Div. 503 (1903). 
 ^ Fruth V. Board of Affairs, 75 W. Va. 456 (1915). 
 " 226 U. S. 137 (1912), supra, 86. 
 
112 CITY PROGRESS AND THE LAW 
 
 The city of Richmond enacted an ordinance providing 
 that * 'whenever the owners of two-thirds of property 
 abutting on any street shall, in writing, request the 
 commissioner on streets to establish a building line on 
 the side of the square on which their property fronts, 
 the said commissioner shall establish such line so that 
 the same shall not be less than five feet nor more than 
 thirty feet from the street line.'* The Supreme Court 
 held this ordinance void upon the following line of 
 reasoning : 
 
 It [the ordinance] leaves no discretion in the committee on 
 streets as to whether the street line shall or shall not be established 
 in a given case. The action of the committee is determined by two- 
 thirds of the property owners. In other words, part of the property 
 owners fronting on the block determine the extent of use that other 
 owners shall make of their lots, and against the restriction they are 
 impotent. This we emphasize. One set of owners determines not 
 only the extent of use, but the kind of use which another set of 
 owners may make of their property. In what way is the pablic 
 safety, convenience, or welfare served by conferring such power? 
 The statute and ordinance, while conferring the power on some 
 property holders to virtually control and dispose of the property 
 rights of others, creates no standard by which the power thus given 
 is to be exercised ; in other words, the property holders who desire 
 and have the authority to establish the line may do so solely for their 
 own interest, or even capriciously. Taste (for even so arbitrary a 
 thing as taste may control) or judgment may vary in localities, in- 
 deed, in the same locality. There may be one taste or judgment cf 
 comfort or convenience on one side of a street and a different one on 
 the other. There may be diversity in other blocks; and, viewing 
 them in succession, their building lines may be continuous or stag- 
 gering (to adopt a word of the mechanical acts) as the interests of 
 certain of the property owners may prompt against the interests of 
 others. The only discretion, we have seen, which exists in the street 
 committee or in the committee of public safety, is in the location of 
 
BUILDING HEIGHTS AND ZONING 113 
 
 the line, between five and thirty feet. It is hard to understand how 
 public comfort or convenience, much less public health, can be pro- 
 moted by a line which may be so variously disposed. 
 
 It will be observed that the court laid special empha- 
 sis upon the fact that the ordinance in question con- 
 ferred power on some property owners to control and 
 dispose of the rights of others/^ The court expressly 
 refused to ''consider the power of a city to establish a 
 building line" as a general proposition. At the same 
 time, the court's stricture upon **so arbitrary a thing 
 as taste" and its difficulty in understanding "how public 
 comfort or convenience, much less public health, can 
 be promoted by a line which may be so variously dis- 
 posed" ^^ cannot escape notice. It seems evident that 
 at that writing the court was, to say the least, not 
 receptive toward the proposition that the establishment 
 of building lines would be a proper exercise of the 
 police power. And, indeed, it is difficult to see how 
 such a regulation could be reasonably fastened upon 
 any of the usual subjects of such power. ^^ 
 
 ** The case was later distinguished from those involving ordinances en- 
 acted under the police power which impose prohibitions or restrictions upon 
 the uses of property, but which vest in adjacent property owners the power 
 to remove such restrictions by consent. See Thomas Cusack Co. v. City 
 of Chicago, supra, 86. While the requirement of the consent of property 
 owners to remove a restriction imposed under the police power has received 
 the sanction of the United States Supreme Court, such a requirement has 
 been held void by some of the state courts. See, for example. City of St. 
 Louis V. Russell, 116 Mo. 248 (1893); Ex parte Sing Lee, 96 Cal. 354 (1892) ; 
 State ex rel. Omaha Gas Co. v. Withnell, 78 Neb. 33 (1907). 
 
 *^ Building lines absolutely fixed by municipal authorities might be equally 
 various in their dispositions. 
 
 ^^See also City of Philadelphia v. Linnard, 97 Pa. St. 242 (1881); In re 
 Chestnut Street, 118 Pa. St. 593 (1888); and State ex rel. Berger v. Hurley, 
 73 Conn. 536 (1901); all of which involved questions of building lines. 
 
114 CITY PROGRESS AND THE LAW 
 
 Zones for exclusively residential purposes 
 
 From the viewpoint of city planning in its larger 
 aspects, the cases involving attempts to create in cities 
 distinct residence districts from which all business is 
 excluded are doubtless of greater importance than any of 
 the cases heretofore mentioned. Such attempts have 
 been recently made in a number of cities, but every 
 one of them has thus far met defeat at the hands of the 
 courts. In St. Louis an ordinance enacted under express 
 authority granted by the legislature in 1891 provided 
 that houses fronting on Washington Boulevard * 'shall 
 be used as residences only, and no business avocations 
 shall be allowed to be followed in same." The supreme 
 court of Missouri held that this ordinance was an unwar- 
 ranted invasion of private property rights.^^ 
 
 In Maryland questions of this character have been 
 more than once before the supreme court. The earliest 
 of these cases involved an ordinance of the city of Balti- 
 more which prohibited the issuance of a building permit 
 except for a building which "will conform to the general 
 character of the buildings previously erected in the 
 same locality, and will not in any way tend to depreci- 
 ate the value of surrounding improved or unimproved 
 property." The court held that a citizen had a ''common- 
 law right" to build upon and improve his property "as 
 his taste, his convenience, or his interest may suggest 
 or as his means may justify, without taking into con- 
 sideration whether his buildings and improvements 
 
 *' City of St. Louis v. Dorr, 145 Mo. 466 (1898). The statute was also 
 held void as creating a class of cities unwarranted by the state constitution; 
 but the decision on this point was apparently overruled at a later date. See 
 McBain, The Law and the Practice of Municipal Home Rule, p. 124. 
 
BUILDING HEIGHTS AND ZONING 1 15 
 
 will conform in 'size, general character, and appearance' 
 to the 'general character of buildings previously erected 
 in the same locality'; even though there might be 
 those in whose 'judgment' his so building might, in 
 some way, 'tend to depreciate the value of surrounding 
 improved or unimproved property'. " ^^ In a case 
 decided in 191 6 the same court held void a statute 
 which required that every dwelling house in a desig- 
 nated section of Baltimore should be "constructed as a 
 separate and unattached building," such buildings to be 
 twenty feet apart if of frame construction and ten feet 
 apart if of masonry construction.^^ The suggestion that 
 semi-detached brick houses would be a menace to the 
 public health or public safety was dismissed as wholly 
 untenable. Even though the erection of such houses 
 in the locality proposed "would undoubtedly depreciate 
 to some extent the value of some property," their erec- 
 tion could not be prevented. "The act," said the court, 
 "does not relate to the police power, and its enforcement 
 would deprive the appellee of property rights guaran- 
 teed by the Constitution, which cannot be invaded for 
 purely sesthetic purposes under the guise of [the] 
 police power. "^^^ 
 
 In Chicago a recently enacted ordinance required 
 the consent of the owners of a majority of the prop- 
 erty on both sides of the street for the erection of 
 a store "in any block in which all of the build- 
 ings are used exclusively for residence purposes." 
 
 ^ Bostock V. Sams, 95 Md. 400 (1902). 
 
 49 Byrne v. Maryland Realty Co., (Md.) 98 AU. 547 (1916). 
 
 ^° See also Stubbs v. Scott, (Md.) 95 Atl, 1060 (1915), where, although the 
 ordinance in question was held to be ultra vires, the court declared as follows: 
 "Opening stores in some neighborhoods may be injurious to surrounding 
 
Il6 CITY PROGRESS AND THE LAW 
 
 In declaring this ordinance void the Illinois supreme 
 court said : ^^ 
 
 But even if the municipality is clothed with the whole police 
 power of the state, it would still not have power to deprive a citizen 
 of valuable property rights under the guise of prohibiting or regulat- 
 ing some business or occupation that had no tendency whatever to 
 injure the public health or public morals or interfere with the general 
 welfare. . . There is nothing inherently dangerous to the 
 health or safety of the public in conducting a retail store. It may be 
 that in certain exclusively residential districts the owners of resi- 
 dence property would prefer not to have any retail stores in such 
 blocks; but if such be the case, it manifestly arises solely from aes- 
 thetic considerations, disconnected entirely from any relation to the 
 public health, morals, comfort or general welfare. Legislation, 
 either by the state or by municipal corporations, cannot be sustained 
 for purely aesthetic purposes. 
 
 A recent Denver ordinance sought to prohibit, except 
 with the consent of the property owners in the block, the 
 erection in a designated residence section of the city 
 not only of buildings for business purposes but also 
 of apartment houses, flat houses, large rooming houses 
 and hotels.^2 fhe ordinance further required that every 
 building should be '*on a line of the average distance 
 back from the front line of the lots as the buildings on 
 the same side of the street in the same block. ' ' The Colo- 
 rado court found no difficulty in deciding that "a store 
 
 properties occupied for residences, but it would be difficult, if not impossible, 
 to prevent an owner from converting his residence into a store building, 
 even in the most exclusive part of the city, if he saw proper to do so." 
 
 ^1 People ex rel. Friend v. City of Chicago, 261 111. 16 (1913). 
 
 ^2 It was declared unlawful, without such consent, "to build or erect or 
 make addition to a terrace (for more than two families) , apartment house, 
 or flat (for more than four families), store building or factory of any kind, 
 rooming house of more than thirty rooms, hotels or any building similar 
 to those before mentioned." 
 
BUILDING HEIGHTS AND ZONING 117 
 
 building is in no sense a menace to the health, comfort, 
 safety, or general welfare of the public . . . whether 
 it stands upon the rear portion of the lots upon which 
 it is erected, or is constructed to the line of the street." 
 Restrictions for aesthetic purposes, said the court, **can- 
 not be upheld. "^^ So in New York it was held that an 
 ordinance of Utica which prohibited the * 'maintenance 
 or conduct" of a public garage within the city limits 
 without a permit from the superintendent of buildings 
 did not prohibit the erection of a building to be ''used 
 and occupied for buying, selling, dealing in and other- 
 wise disposing of vehicles, automobiles, motor cycles 
 and other personal property." "It may be said in pass- 
 ing," remarked the court, that "any attempt to exercise 
 any such power would be unconstitutional, for the busi- 
 ness of selling such vehicles is as lawful as the sale of 
 groceries or dry goods."^* In the same state also a lower 
 court has held ^^ that a city ordinance establishing a 
 residence district, under the authority conferred by 
 the Housing Act of 19 13, ^^ was void as the law upon this 
 subject now stands." In this case, however, the court 
 expressed an aspiration "to see the law broadened, not 
 in the direction of Socialism, not to take away one 
 whit from the proposition that all men are endowed 
 with certain inalienable rights, not to interpose a 
 single obstacle to the reasonable and healthy growth 
 of a city, but to prevent a person who owns real estate 
 
 " Willison V. Cooke, (Col.) 130 Pac. 828 (1913). 
 
 ^ People ex rel. Realty Co. v. Stroebel, 209 N. Y. 434 (1913). 
 
 ^ People V. Roberts, 153 N. Y. Supp. 143 (1915). 
 
 ^Laws of New York, 1913, chs. 774, 798; repealed by Laws of 1915, 
 ch. 32. 
 
 " Quoting Dillon, Municipal Corporations, 5th ed., sec. 695, on the present 
 status of the law. 
 
\l8 CITY PROGRESS AND THE LAW 
 
 in a residence district from using the same for any pur- 
 pose unusual in such districts, unreasonably, and in a 
 spirit that fair men would condemn.'* 
 
 An ordinance of the city of Bay St. Louis, in Missis- 
 sippi, sought to prevent the erection of anything but 
 open summer houses upon property situated between 
 the shore of the bay and a boulevard lined with such 
 houses. A property owner who wanted to build a 
 market shanty within the prescribed district brought 
 action to enjoin the city from enforcing the ordinance. 
 The supreme court of the state was evidently convinced 
 that the ordinance was drawn in the interest of the 
 "sentiment of a particular class" having ''superior culti- 
 vation." The ordinance was held *'to deprive the owners 
 of property of its lawful use for a supposed public 
 advantage." ''Before this can be done," said the court, 
 "there must be just compensation first made."^^ 
 
 In 191 5 the city of Minneapolis enacted an ordinance 
 establishing a residence district and prohibiting within 
 this district the "erection and maintenance of hotels, 
 stores, factories, warehouses, dry cleaning plants, pub- 
 lic garages or stables, or any industrial establishments 
 or any business whatsoever." After a careful review of 
 many cases in point the supreme court of Minnesota 
 held that this ordinance could not be sustained "in so 
 far as it prohibits the erection of ordinary store build- 
 ings;" but this was expressly declared not to mean "that 
 it is not valid in so far as it applies to structures which 
 are within the regulatory domain of the police power."^^ 
 
 ^ Quintini v. Mayor etc. of Bay St. Louis, 64 Miss. 483 (1886). 
 5^ State ex rel. Lachtman w. Houghton, (Minn.) 158 N.W. 1017 (1916). 
 Two justices dissented. 
 
BUILDING HEIGHTS AND ZONING 119 
 
 The protection of property values as a subject of 
 the police power 
 
 The above-mentioned cases present a somewhat im- 
 posing array of decisions by the highest courts of the 
 states against the competence of the state, or its agent, 
 the city, to create zones or districts for exclusively 
 residential purposes. This question, although it is 
 obviously a federal question, has not as yet been pre- 
 sented to the highest court of the land. It will be 
 noted that a number of the cases in point, as well as 
 the cases dealing with the power of the city to establish 
 building lines, apparently proceed upon the assumption 
 that the property rights involved can be taken from 
 the owners provided just compensation is made.®^ This" 
 only gives emphasis to the fact already mentioned ^^ 
 that in construing the purposes for which the power of 
 eminent domain may be used, the courts are naturally 
 more generous than they are in defining the scope of the 
 police power. When the precise connotation of words 
 is considered there is in point of fact small margin for 
 this diifferentiation. The power of eminent domain 
 may be used only for a ''public purpose." The police 
 power, say the courts unguardedly, may be employed 
 in the interest of the ''public welfare." Unless there be 
 some recognizable distinction between these two 
 phrases,^^ it would seem that these two powers are, so 
 far as purposes are concerned, of exactly the same 
 comport. 
 
 ^A recent Minnesota law provides for the establishment of residence 
 districts under the power of eminent domain. Laws of Minnesota, 1915, 
 ch. 128. 
 
 « Supra, 66, 67. 
 
 M Infra, 125 ff. 
 
I20 CITY PROGRESS AND THE LAW 
 
 However that may be, it is certain that if the power 
 of a city to regulate upon this broader scale the uses to 
 which private property may be put is to be sustained 
 as a proper exercise of the police power, some new line 
 of reasoning must be found and pursued. The custo- 
 mary subjects of the police power are of no avail unless 
 it be assumed that the United States Supreme Court, 
 the court of last resort upon such a question, can be 
 induced to sustain restrictions of this kind without 
 close scrutiny, as in the case of billboard restrictions.^^ 
 The difficulty about such an assumption is that prop- 
 erty rights of a far more comprehensive character are 
 involved, and that scarcely a shadow of purpose in the 
 direction of protecting the public health or the public 
 safety can be demonstrated. From the viewpoint of 
 the law it is certainly insufficient for the advocates of 
 city planning to declare somewhat vaguely that ''the 
 most important part of city planning, so far as the 
 future health of the city is concerned, is the districting 
 of the city into zones ;"^^ or to assert that ''districting 
 is the only practical method of preventing the spread 
 of congestion ;"«5 or to aver that "the setting of a 
 definite limit to the use of land in any particular part 
 of the city, makes it possible to calculate pretty closely 
 just how wide the streets need to be."^^ The courts, as 
 we have seen, are prepared to sustain the principle of 
 zoning in its application to offensive businesses, or the 
 heights of buildings, or even billboards, for the reason 
 that the regulation of such things can, under certain 
 
 63 Supra, 85-87. 
 
 ** Marsh, Introduction to City Planning, p. 28. 
 
 ^ Nolen, Better City Planning for Bridgeport, 1916, p. 138. 
 
 6« Robinson, Width and Arrangement of Streets, p. 80. 
 
BUILDING HEIGHTS AND ZONING I2I 
 
 circumstances at least, be justified as measures in the 
 interest of the public health or safety. But the courts 
 must be shown that the erection of a building on the 
 street line or the maintenance of a corner grocery in a 
 residence section of the city is in the same category. 
 As a matter of fact a contention of this kind will be 
 difficult to prove. 
 
 Is there, then, any other invitingly propitious line of 
 reasoning that may be invoked? In consideration of 
 the fact that the courts have rarely if ever sustained 
 under the police power legislation that could not be 
 gathered under one or more of its commonly enumer- 
 ated subjects, it seems almost futile to seek support in 
 those broad descriptions of the police power which, 
 isolated from the context of specific issues, merely pro- 
 voke the imagination to flights. ** Comfort," "conven- 
 ience," "welfare," and "prosperity'* are terms which lend 
 themselves less to definition than to speculation.^^ If 
 such undefinable terms be passed over for practical 
 reasons, it seems unescapable that regulations in respect 
 to building lines or residence districts are always im- 
 posed for one of two purposes : to secure aesthetic sym- 
 metry, or to stabilize realty values. Both of these pur- 
 poses may be in mind; but it is perhaps beyond dis- 
 pute that the latter is primary. Is this a legitimate, a 
 proper, purpose for the exercise of the police power? 
 
 It must be borne in mind that the police power, in 
 spite of the terms in which it is commonly described, 
 has its economic as well as its social uses.®^ To sustain 
 
 •f On this point see State ex rel. Lachtman v. Houghton, (Minn.) 158 N. W. 
 1017 (1916). 
 
 ^ Supra, 59, 61. 
 
122 CITY PROGRESS AND THE LAW 
 
 the stabilization of realty values under this power would 
 doubtless be to create a new economic subject of con- 
 trol. It would seem, nevertheless, that this is precisely 
 what the courts should be asked to do. Arguments of 
 much force may certainly be put forward in support of 
 the wisdom of regulations in the interest of protecting 
 sectional property values. Protection of this kind, 
 when it is founded upon some fairly comprehensive plan 
 involving a considerable number of property owners, 
 may surely be regarded as protection for the public 
 rather than for the property owner as an individual. 
 And if it be urged that the recognition of such a subject 
 of control under the police power would open up possi- 
 bilities for mistakes of judgment and grave abuses, it 
 may be answered that such possibilities inhere in every 
 exercise of the police power, and that the constitution- 
 ality of a new policy of regulation should not be tested 
 in the light of extreme possibilities that assume either 
 ignorance and stupidity or deliberate bad faith. 
 
 Even the social subjects of the police power have 
 occasionally an important economic aspect. The pub- 
 lic safety, for example, has perhaps been most fre- 
 quently invoked in the matter of protection against 
 fire. Have our law-makers considered this danger 
 wholly with reference to life and limb? Manifestly not. 
 On the whole it has probably been considered, though 
 not so defined, as an economic rather than a personal 
 danger. It is true that regulations for fire protection 
 have not been in the interest of stabilizing realty values, 
 but many of them have certainly been in large measure 
 for the protection of such values. There is many a 
 property owner who would have regretted his fire loss 
 
BUILDING HEIGHTS AND ZONING 123 
 
 less than the loss which he suffered by reason of an 
 unforeseen — not to say capricious — change in the neigh- 
 borhood character of his realty holding. 
 
 The United States Supreme C^urt has declared that 
 the police power may be used "for the benefit of prop- 
 erty owners generally ;'*^^ the Massachusetts court 
 has recognized that differences in the 'Value of land 
 and the demand for space" may be considered in regu- 
 lating building heights ;''^ the Nebraska court has argued 
 that damage to the 'Value of residence property" may 
 be at least one reason for excluding a more or less 
 offensive industry ;^i a lower New York court has put 
 forward the impairment of property values as the sole 
 reason for excluding factories from residence districts 
 without regard to offensiveness.^^ Why, indeed, may 
 not the protection of property values, not of the indi- 
 vidual but of an entire group, be included as an appro- 
 priate subject of the police power. Of all the subjects 
 of the police power it would seem that this would be the 
 least open to objection. It is chiefly the property rights 
 of individuals, protected by constitutional provisions, 
 that have stood in the way of an expansion of the police 
 power. But here is a proposal for an exercise of the 
 police power for the creation of new legal property 
 rights in the interest of a group. Are the property 
 rights of many to be sacrificed to the property rights 
 of a single individual because, forsooth, the former are 
 of statutory origin under the police power, while the 
 latter find historical sanction in the constitution? 
 
 •« Supra, 95. 
 " Supra, 108. 
 " Supra, 104. 
 n Supra, 106. 
 
CHAPTER V 
 
 CITY PLANNING— EXCESS CONDEMNATION 
 
 Excess condemnation is a peculiarly American term 
 employed to describe the policy of condemning private 
 property for some purpose that is collateral or incident 
 to a primary public use for which adjacent property is 
 being or has been acquired. When a public improve- 
 ment is undertaken, such as the opening or widening of 
 a street or boulevard, or the establishment of a park, 
 or some other similar enterprise, it may seem desirable 
 that property in "excess" of what is indispensable for 
 such improvement be taken for one or more of several 
 collateral purposes. From the viewpoint of the law the 
 use of the word * 'excess" in this connection is unfortu- 
 nate; it fairly implies that the property is not needed 
 for any public purpose. The fact is, however, that the 
 constitutionality of the so-called policy of excess con- 
 demnation depends wholly upon the question whether 
 the purpose for which it is employed may or may not 
 be regarded as "public" in character. This arises from 
 two fundamental rules of our law, one of which relates 
 to the power of eminent domain and the other to the 
 power of taxation. 
 
 The rule of ^^ public use^^ 
 
 Our state constitutions commonly provide that pri- 
 vate property shall not be taken for public use except 
 upon the payment of just compensation ; and the United 
 
CITY PLANNING— EXCESS CONDEMNATION 125 
 
 States Supreme Court has held that this requirement, 
 although not expressed as a federal prohibition against 
 the states,^ is nevertheless embraced within the guar- 
 anty of due process of law.^ Since this prohibition 
 refers only to property taken for a public use, it has 
 been construed by the courts to imply that private 
 property may not be taken for private use whether com- 
 pensation is paid or not.^ There is also a general rule 
 of our constitutional law that taxes may be imposed 
 only for a public purpose.^ This rule must likewise be 
 considered ; for the property that is acquired under the 
 policy of excess condemnation must normally be paid 
 for by the levying of taxes. The constitutionality of 
 excess condemnation, therefore, depends upon the defi- 
 nition of the terms ''public use" and "public purpose." 
 Doubtless these terms may be regarded as identical in 
 meaning. The question is : what is their meaning? 
 
 It is impossible to give here any adequate outline of 
 the wide varieties of opinion that have been expressed 
 by the courts on the subject of what constitutes a pub- 
 lic use or purpose. 5 An eminent commentator has at- 
 tempted to summarize the law by declaring that *'the 
 
 1 It is expressed in the fifth amendment as a prohibition upon Congress. 
 
 2 Chicago, Burlington & Quincy R. Co. v. Chicago, i66 U. S. 226 (1896). 
 "It is fundamental in American jurisprudence that private property cannot 
 be taken by the government, national or state, except for purposes which are 
 of a public character, although such taking be accompanied by compensation 
 to the owner. That principle . . . grows out of the essential nature of all 
 free governments." Harlan, J., in Madisonville Traction Co. v. St. Bernard 
 Mining Co., 196 U. S. 239 (1904). 
 
 8 McBain, Taxation for a Private Purpose, in Political Science Quarterly, 
 XXIX, p. 187. A few state constitutions expressly prohibit this taking of 
 property for private uses. 
 
 < This rule has not as yet been referred to the federal guarantee of due 
 process of law. Ihid. 
 
 8 See Lewis, Eminent Domain, 3d ed., ch. VII. 
 
126 CITY PROGRESS AND THE LAW 
 
 different views which have been taken of the words 
 'public use' resolve themselves into two classes: one 
 holding that there must be a use or a right of use on 
 the part of the public or some limited portion of it, the 
 other holding that they are equivalent to public benefit, 
 utility or advantage." ^ The weight of authority, he 
 thinks, as well as the weight of reason, supports the 
 first of the views. In other words, ''public use means 
 use hy the public .'"^ 
 
 In spite of the frequent enunciation of this distinction 
 by the courts, it seems highly questionable whether in 
 fact it gives expression to a very concrete conception. 
 What is the test of a ''use by the public"? It is not 
 ownership by the government ; for the power of eminent 
 domain may be granted to private persons. It is not 
 that the property acquired must be indispensable to the 
 object sought; for property is often condemned under 
 no such exacting circumstances. It is not that the pub- 
 lic shall have a right of access to the property acquired ; 
 for the public has no peculiar right of access to lands 
 taken for such enterprises as a waterworks, or a gas or 
 electric plant, or a railway shop or yard, or a large 
 number of other properties that may be secured under 
 eminent domain. It is not that the public enjoys a 
 legal right to demand some kind of service from the 
 authority or person who acquires by eminent domain 
 property to be used in connection with the furnishing 
 of such service; for the public enjoys no legal right to 
 demand fire protection, although property may cer- 
 tainly be condemned for fire houses. It is not the 
 
 « Lewis, Eminent Domain, sec. 257. 
 » Ibid., sec. 258. 
 
CITY PLANNING— EXCESS CONDEMNATION 127 
 
 number of persons affected; for the United States 
 Supreme Court is authority for the rule that in certain 
 circumstances eminent domain may be exercised for the 
 benefit of a single person.^ Indeed, it would probably 
 be difficult to discover any test or group of alternative 
 tests that could be applied to determine precisely what 
 is meant by a **use by the public." 
 
 If it be conceded, then, that the phrase "use by the 
 public" is somewhat undefinable, and that in con- 
 sequence the distinction between such a use and a ''pub- 
 lic benefit, utility or advantage" is, after all, not easily 
 demarked, it becomes from one point of view more 
 difficult and from another, less difficult to determine 
 whether property acquired under the so-called policy 
 of excess condemnation is or is not taken for a public 
 use. It is more difficult because there are few if any 
 recognized tests that may be applied; the usual §ub- 
 jects of the power of eminent domain are not even as 
 definitely formulated as those of the police power. ^ It 
 is, on the other hand, less difficult simply because of 
 this indefiniteness. It is manifestly easier to establish 
 a new subject for the exercise of an elastic power of 
 government when the instances of its previous exer- 
 cise have not been rigidly classified with reference to 
 subject purposes. 
 
 7^ a constitutional provision necessary? 
 
 In Massachusetts, Ohio, Wisconsin, New York, and 
 Rhode Island excess condemnation has been authorized 
 by constitutional amendments. Similar amendments 
 
 » Clark V. Nash, 198 U. S. 361 (1905). 
 • Supra, 59 flf. 
 
128 CITY PROGRESS AND THE LAW 
 
 have been defeated at the polls in California and New 
 Jersey, and a proposed amendment in Pennsylvania 
 failed to receive the approval of a second legislature. 
 In certain other states excess condemnation laws have 
 been enacted without express constitutional sanction. 
 The notion seems to prevail, however, that all doubt in 
 respect to the validity of such laws can be resolved by 
 incorporating a provision upon the subject into the 
 constitution of the state. Indeed, the two Massachu- 
 setts amendments were adopted and the Pennsylvania 
 amendment was proposed subsequent to opinions by 
 the highest courts of these states adverse to excess 
 condemnation statutes. 
 
 As we had occasion to note at the outset, the United 
 States Supreme Court has definitely gathered the pub- 
 lic purpose rule, at least in its application to the power 
 of eminent domain, under the federal guaranty of due 
 process of law. Whether excess condemnation may or 
 may not be practised under our system of jurisprudence 
 is, in consequence, a federal question, although it has 
 not as yet been presented to the highest court of the 
 land. Can a state of the Union draw the teeth of the 
 federal guaranty of due process of law by an amendment 
 to its own constitution to which its own courts will 
 defer? Obviously not, it would seem. A provision of 
 a state constitution may run counter to the fundamental 
 law of the nation as well as a statutory provision. The 
 most that can be said in favor of a state constitutional 
 amendment authorizing excess condemnation is that 
 the state courts would almost certainly defer to it and 
 that the United States Supreme Court would in all 
 probability accord it greater respect than might be 
 
CITY PLANNING— EXCESS CONDEMNATION 129 
 
 given to a statute passed without such constitutional 
 sanction. 
 
 Excess condemnation of remnants of land 
 
 Not infrequently it happens that the taking of prop- 
 erty for a public improvement operates to leave in the 
 hands of private owners remnants of estates that are 
 ill-suited either for independent development or for 
 advantageous conveyance. In such circumstances it 
 may be urged that the city itself should take over such 
 remnants. But for what purpose? If this be advocated 
 solely on the ground of justice to the owners it may be 
 answered not only that the owner of property con- 
 demned is commonly compensated in an amount in 
 excess of the actual market value of his property but 
 also that he is ordinarily paid for property that is 
 damaged as well as for property that is actually taken. 
 If the fragment left on his hands is of little or no 
 economic value, it is needless to say that this fact is 
 usually accounted for in the award that is made 
 to him. But if the city is compelled* to pay for 
 the full value of such a remnant there is certainly 
 no reason why the city should not be empowered to 
 take title to it, whether for a definite or an indefinite 
 purpose. 
 
 The city may in fact have a definite purpose in view. 
 It may, for example, intend to consolidate a number of 
 such remnants, and to replot and offer them for sale. 
 The public character of the purpose involved in a re- 
 plotting of lands adjacent to a public improvement will 
 be discussed in more appropriate connection below; it 
 is sufficient to remark at this point that, considered 
 
130 CITY PROGRESS AND THE LAW 
 
 without reference to other adjoining property, ill- 
 assorted remnants of land abutting upon a public 
 improvement seldom lend themselves to advantageous 
 consolidation and replotting. 
 
 The city may, again, desire to acquire remnants of 
 land in order to prevent their non-use. This could be 
 accomplished either by some plan of parking such rem- 
 nants, or otherwise incorporating them into the scheme 
 of the improvement, or by disposing of them to the 
 owners of adjoining property. If the first of these 
 policies were pursued, there could be little question 
 that the land would be acquired for a public purpose; 
 but the policy of acquiring remnants for subsequent 
 conveyance to adjoining owners raises a wholly different 
 question. In the matter of such conveyance the city 
 would enjoy no advantage over against the previous 
 owner of a remnant except that the city might be willing 
 to sell at a lower figure in order to induce purchase by 
 the owner of the adjoining property. It is clear, how- 
 ever, that unless the city imposed upon the purchaser 
 requirements ih respect to use, the property might still 
 remain unused, and nothing would be accomplished 
 except the creation at the public expense of a potential 
 usefulness by reason of a change of ownership. Since 
 the acquisition of "excess" property in order to resell it, 
 subject to restrictions upon its use, is one of the larger 
 purposes for which the policy of excess condemnation 
 has been urged, it seems unnecessary to discuss as a 
 separate proposition the character of the purpose that 
 is involved where remnants are acquired to prevent 
 their not being used. Such a purpose, whether public 
 or private, can be fully accomplished only by the im- 
 
CITY PLANNING— EXCESS CONDEMNATION 131 
 
 position of requirements or restrictions in the deeds of 
 resale; and it is difficult to see how such a policy with 
 respect to remnants can be distinguished in kind from 
 a like policy applied to parcels of land which are not 
 remnants. 
 
 Another possible object of the city may be to prevent 
 the * 'misuse' ' of remnants. An ill-shaped bit of land may 
 be suitable only for the erection of a billboard or of a 
 building wholly out of keeping with the character of the 
 neighborhood and the wider purposes of the public 
 improvement. Here again, however, whether such a 
 purpose be regarded as public or private, it is manifest 
 that the city can prevent such "misuse" only by in- 
 corporating the remnants into the improvement itself 
 or by reselling them subject to restrictions in respect 
 to use. 
 
 Indeed, it seems patent that, unless undertaken as a 
 matter of justice to the owner or for incorporation into 
 the improvement itself, the acquisition of ''excess" rem- 
 nants can be justified only upon grounds that would 
 also justify the acquisition of lots which are not 
 remnants. 
 
 For the most part American condemnation laws have 
 sought to mete justice to the owner of land taken by 
 paying him for any damage that is done to a remnant 
 left upon his hands. Where the award for such damage 
 is approximately equal to the full valuation, as it often 
 is, a transfer of title to the city becomes, it would seem, 
 a matter of justice to the city rather than to the owner. 
 Although not many cities have been legally competent 
 to take title to such a remnant, in a few instances 
 statutes have attempted to deal with this matter. 
 
132 CITY PROGRESS AND THE LAW 
 
 Thus a New York law of 183310 authorized the village 
 of Brooklyn to take over remnants ''in cases where 
 injury or injustice would otherwise be done, and with 
 the consent in writing of the owner or owner sJ*^ Similar 
 in character were a Louisiana statute of 1832/^ a Massa- 
 chusetts statute of 1866,12 and a Maryland statute of 
 1904.13 These laws, which merely authorized the taking 
 of title, leaving an option both to the municipal cor- 
 poration and the owner, appear not to have been con- 
 tested before the courts. ^^ While they pointed the way 
 to justice, they can scarcely be said to have insured it 
 either to the city or the owner. 
 
 Of quite a different character were a South Carolina 
 law of 1810,1^ a Maryland law of 1838, ^^ and Massachu- 
 setts laws of 1865 and 1904,1^ which made it obligatory 
 upon the city to purchase a remnant in case the owner 
 elected to part with his entire lot. Here the obvious 
 intention was justice to the owner; and while these laws 
 apparently gave slight consideration to the interests of 
 the city, it may well be that they operated more lightly 
 upon the public than those more numerous statutes 
 which compel payment for injury to remnants but 
 neither authorize nor require the assumption of title 
 
 10 Laws of New York, 1833, ch. 319. 
 
 " Act of April 3, 1832. 
 
 "Acts of Massachusetts, 1866, ch. 174. 
 
 13 Acts of Maryland, 1904, ch. 87. 
 
 " The Louisiana act was before the court in Pierre Boulat v. Municipality 
 Number One, S La. Ann. 363 (1850) ; but it is not clear what the owner, who 
 had abandoned his lot to the city, was suing for. 
 
 16 Mentioned in Dunn v. City of Charleston, Harper's Law (S. C.) 189 
 (1824). 
 
 "Laws of Md., 1838, ch. 226. 
 
 "Acts and Resolves of Massachusetts, 1865, ch. 159; ibid., 1904,. 
 ch. 443. 
 
CITY PLANNING— EXCESS CONDEMNATION 133 
 
 to them by the city. Needless to say, no such law has 
 ever been declared void.^^ 
 
 Quite otherwise in intent was a New York law of 
 1812^^ which authorized the city of New York to take 
 the whole of any lot, where any part of it was needed, 
 whenever the city deemed it expedient to do so. There- 
 after the city might either sell the excess land or appro- 
 priate it to some public use. This was clearly an author- 
 ization of excess condemnation in the modern concep- 
 tion of the term. But this law was declared void.^o 
 There could be no objection, said the court, to a taking 
 by the city with the owner's consent; without such con- 
 sent, however, this would be a taking of the private 
 property of one person for the private use of another 
 to whom the city conveyed it. In South Carolina, like- 
 wise, it was early declared that the legislature could 
 not empower a city to condemn remnants without the 
 owner^s consent.^^ A Pennsylvania law enacted in 1868, 
 which conferred upon the Fairmount Park Commission 
 of Philadelphia power to acquire excess remnants by 
 condemnation, 22 was apparently never contested before 
 the courts, and was probably made use of only in a single 
 
 " The South Carolina statute of 1810 was not in question in the Dunn 
 case, supra, but was referred to with approval. A Baltimore ordinance of 
 1858, enacted under the law of 1838 (every ordinance on the subject since 
 1838 had contained similar provisions), was sustained in Mayor, etc., of 
 Baltimore v. Clunet, 23 Md. 449 (1865). 
 
 "Laws of New York, 1812, ch. 174. 
 
 so In the matter of Albany Street, 1 1 Wend. (N. Y.) 149 (1834) ; reaffirmed 
 in Embury v. Connor, 3 N. Y. 511 (1850), and Bennett v. Boyle, 40 Barb. 
 (N. Y.) SSI (1863). 
 
 21 Duim V. City of Charleston, Harper's Law (S. C.) 189 (1824). The law 
 in question was enacted in 1 8 1 7 . The view thus expressed was in fact dictum , 
 for by a very strained construction of the law the court held that the legis- 
 lature had not attempted to confer such powef . 
 
 »Laws of Pennsylvania, 1868, no. 1020. 
 
134 CITY PROGRESS AND THE LAW 
 
 instance.23 In 1904 the legislature of Massachusetts 
 authorized the commonwealth itself, as well as any city, 
 to condemn excess remnants in cases where "the rem- 
 nant left . . . would from its size or shape be unsuit- 
 able for the erection of suitable and appopriate build- 
 ings, and if public convenience and necessity require 
 such taking." Grudgingly, the supreme court of Massa- 
 chusetts gave approval to this statute. ^^ The opinion 
 declared : 
 
 In our judgment it [the statute] goes to the very verge of con- 
 stitutionality. The grounds on which we are inclined to sustain 
 it . . . are, first, that there can be no taking outside the location 
 of the public work, except for a remnant of an estate a part of which 
 is actually required for the laying out or alteration of the public 
 work, and then only if the remnant left after taking such part would, 
 from its size or shape, be "unsuited for the erection of suitable and 
 appropriate buildings," — in other words, only when there is a rem- 
 nant that is too small or too ill-shaped to be of any practical value 
 for the use to which valuable land is commonly put; and secondly, 
 that such a remnant can be taken only upon an adjudication that 
 public convenience and necessity require the taking. Unless it can 
 be said that public convenience and necessity never can require the 
 taking of such a remnant the statute cannot be declared uncon- 
 stitutional. 
 
 While it is plain that a city or town cannot take land outside a 
 public work for speculative purposes, we can conceive of a remnant 
 of an estate, a part of which is necessarily taken, which remnant is 
 so small, or of such a shape and of so little value that the taking of 
 it in the interest of economy or utility, or in some other public in- 
 terest, may be fairly incidental and reasonably necessary, in con- 
 nection with the taking of land for the public work. 
 
 It will be observed that the court was here extremely 
 vague in discussing the public purpose that would be 
 
 23 Cushman, Excess Condemnation, p. 6i. 
 
 2* Opinions of Justices, 204 Mass. 616 (1910). 
 
CITY PLANNING— EXCESS CONDEMNATION 135 
 
 served by the condemnation of the limited class of rem- 
 nants to which the law applied. ^^ The statute itself 
 permitted condemnation only when "public convenience 
 and necessity required." It would seem that any land 
 that is required by "public convenience and necessity" 
 must be regarded as being condemned for a public pur- 
 pose or use. The question is : what public convenience 
 or necessity could be served by the condemnation of 
 these small-sized or ill-shaped remnants? The court 
 suggests "economy" and "utility" — presumably "public 
 economy" and "public utility." The latter term as used 
 in this connection can mean only public usefulness ; but 
 useful to the public in what respect, for what purpose? 
 In using the term public economy the court probably 
 had in mind that the city might condemn the whole and 
 resell the excess remnant at less net expense than it 
 could condemn only the part actually needed ; but it is 
 difficult to see why this should be possible except upon 
 the assumption that the city would in reselling, inter- 
 cept an unearned increment of value created by the im- 
 provement. But if this is a public purpose for which ex- 
 cess condemnation may be employed, surely it should not 
 be restricted to insignificant and ill-shaped remnants. 
 
 On the whole, it would seem that, although the act 
 in question was sustained, the Massachusetts court had 
 no very definite idea of what public purpose was in view. 
 In any case, it is manifest that an act hedged about with 
 such extreme restrictions could be of small practical 
 avail. We have in point of fact had very little experi- 
 ence with statutes providing for the acquisition of rem- 
 
 » This opinion was given to the legislature upon request; the court did 
 not, therefore, have before it any specific application of the law. This doubt- 
 less accounts in part for the generality of the discussion. 
 
136 CITY PROGRESS AND THE LAW 
 
 ncints without the consent of owners. Moreover, as 
 already pointed out, it is well nigh impossible to see how 
 the taking of a remnant from a reluctant owner can be 
 justified upon any ground that would not also justify 
 the taking of a lot which was not a remnant. 
 
 Excess condemnation for the ''protection^* of 
 public improvements 
 
 When a city lays out, widens, or otherwise improves 
 a street, parkway, or boulevard, it often has a purpose 
 (whether it be expressed or not, and whether it be re- 
 garded as ''public" or not) that is broader than the mere, 
 though main, purpose of furnishing a highway for travel. 
 It may have in contemplation a highway of a definite 
 character — that is, character as determined by the uses 
 to which abutting property is put — a street for hand- 
 some residences, or for workmen's houses, or for com- 
 mercial uses. Now the policy of excess condemnation 
 has been urged, perhaps primarily, as an instrumentality 
 by which the city may exercise larger control over the 
 character, as thus defined, of its streets, boulevards, 
 parks, and other public places. The "protection" of a 
 public improvement is manifestly a vague expression; 
 but it seems to describe as well as any other the general 
 purpose here under consideration. 
 
 The policy of condemning property for the "pro- 
 tection" of public improvements is of comparatively 
 recent advocacy in the United States. As yet we have 
 had more constitutional provisions and laws upon the 
 subject than actual exercises of the power conferred 
 and resulting judicial determinations as to its validity. 
 An examination of constitutional provisions and laws 
 
CITY PLANNING— EXCESS CONDEMNATION 137 
 
 upon the subject reveals that, so far as their purposes 
 are disclosed by their letter, they fall into two general 
 classes.26 There are, in the first place, those which 
 define, at least in general terms, the purposes for which 
 excess condemnation may be employed and restrict 
 the exercise of the policy to these purposes. There are, 
 in the second place, those which upon their face ap- 
 parently authorize the use of the policy for purposes 
 which are wholly undefined. 
 
 In the first of these categories may be placed an Ohio 
 law of 1904," which authorized cities to condemn prop- 
 erty in excess of actual needs "for the purpose of resell- 
 ing such land with reservations in the deeds of such 
 resale as to future use of such lands so as to protect 
 public buildings and their environs and to preserve the 
 view, appearance, light, air, and usefulness of public 
 grounds occupied by public buildings and esplanades 
 and parkways leading thereto." Of the same gen- 
 eral character in respect to an indication of pur- 
 poses are the constitutional amendments adopted in 
 Ohio 2^ and Wisconsin ^^ in 1912, a Virginia law of 
 
 2^ A valuable analytical table of constitutional provisions and statutes 
 upon the subject is found in Cushman, Excess Condemnation, pp. 218- 
 
 239- 
 
 27 Laws of Ohio, 1904, p. 333, amending sec. 10 of the municipal code of 
 1902; reenacted without alteration, ibid., 1908, p. 207; General Code of 
 Ohio, 1910, I, p. 788, sec. 3677, par. 12. 
 
 28 Art. XVIII, sec. 10. This grant is greatly restricted by the provision 
 that bonds issued for such purpose "shall be a lien only against the property 
 so acquired for the improvement and excess." Infra, 159, 
 
 29 Art. XI, sec. 3a. A proposed amendment of broader scope was de- 
 feated in Wisconsin in 1914. Amendments requiring that restrictions be im- 
 posed on excess property when resold were also defeated in California (Art. 
 XI, sec. 20) in 1914 and again in 1915, and in New Jersey (Art. IV, sec. 9) 
 in 1915. A similar amendment was proposed in Pennsylvania (Art. IX, 
 sec. 6) in 1915 but failed to pass the legislature in 1917. 
 
138 CITY PROGRESS AND THE LAW 
 
 1906,3'' a Pennsylvania law of 1907,31 a Maryland law 
 of 1908,32 two Wisconsin laws of 1909 cind another of 
 1911,33 an Oregon law of 1913,3^ and two New York 
 laws, of 191 1 and 1915.3^ 
 
 In the case of every one of these constitutional pro- 
 visions and statutes, the purposes for which the policy 
 of excess condemnation may be resorted to are set 
 forth in more or less general terms. In spirit, if not 
 indeed in letter, they limit the use of the policy to the 
 purposes indicated.36 The question is: are these pur- 
 poses public purposes? In only one or two jurisdictions 
 has this question been considered. 
 
 The Pennsylvania law of 1907 authorized cities to 
 
 »oActs of Virginia, 1906, ch. 194; amended, ihid., 1916, ch. 71, so as to 
 authorize the taking of excess property for the purpose of replotting, as well 
 as for "imposing limitations as to the uses thereof." 
 
 '^ Laws of Pennsylvania, 1907, no. 315. 
 
 82 Laws of Maryland, 1908, ch. 166. 
 
 8« Laws of Wisconsin, 1909, chs. 162, 165; ibid., 191 1, ch. 486. 
 
 "Laws of Oregon, 1913, ch. 269. 
 
 86 Laws of New York, 1911, ch. 776; ihid., 1915, ch. 593. The 1911 law 
 authorized the city of New York, in connection with the improvement of 
 its waterfront facilities, to acquire lands "additional and adjacent" to ter- 
 minal ways or stations and to dispose of such lands "after the same shall have 
 been replotted, regraded or otherwise adapted for such access, use or im- 
 provement . . . subject to such restrictions as said board (of estimate 
 and apportionment) may see fit to impose thereon to promote such access 
 or use to effect such improvement." 
 
 8« It may be urged, of course, that the city in reselling might impose re- 
 strictions of so negligible a character that the purposes indicated by the law 
 would not in fact be accomplished. This would be a difficult matter to con- 
 trol, for it is obvious that large discretion must be vested in the authorities 
 empowered to carry out the policy. A lower Pennsylvania court, however, 
 declared void an ordinance of Philadelphia on the ground that it did not 
 specify the restrictions that should be imposed. Pennsylvania Mutual Life 
 Ins. Co. V. Philadelphia, 22 Pa. Dist. 195 (1913). The supreme court of the 
 state subsequently held void the statute under which the ordinance was 
 enacted; ibid., 242 Pa. St. 47 (1913). 
 
CITY PLANNING— EXCESS CONDEMNATION 139 
 
 condemn property in excess of what was needed for cer- 
 tain public improvements and to resell such property 
 'with such restrictions in the deeds of resale in regard 
 to the use thereof as will fully insure the protection of 
 such public parks, parkways and playgrounds, their 
 environs, the preservation of the view, appearance, 
 light, air, health and usefulness thereof." Brought be- 
 fore the highest court of the state, this statute was de- 
 clared void.3^ Briefly put, the argument of the court 
 was that a.'public use" is a ''use by the public." In this 
 case the 'protection of the highway is the only 'public 
 use' to which the land is to be applied." But this is not a 
 "use by the public." "Saving the restriction contained 
 in the conveyance, the city can exercise no control over 
 it" — the land so condemned — "and hence cannot use it 
 for any purpose." Even if it be conceded that it is a 
 "legitimate public use" to "protect the highway and 
 preserve the light, air, etc.," the city "is not permitted 
 to hold it for that or any other public purpose." The 
 act simply authorizes the city to take the property of 
 one person and convey it to another. 
 
 In a recent Maryland case ^^ the excess condemnation 
 law enacted in that state in 1908 was before the supreme 
 court. As a result, however, both of the nature of the 
 action, which was to restrain a bond issue, and of the 
 highly complicated statutory situation that was in- 
 volved, it is impossible to declare whether the court 
 intended to uphold the policy of excess condemnation, 
 or to draw the teeth of the statute, or to leave the entire 
 question open. Certain it is that in the opinion that 
 
 " Pennsylvania Mutual Life Ins. Co. v. Philadelphia, 242 Pa. St. 47 (1913)- 
 »8 Duke Bond v. Mayor, etc., of Baltimore, 116 Md. 683 (191 1). 
 
140 CITY PROGRESS AND THE LAW 
 
 was read nothing was added to or taken from the sum 
 of legal reasoning upon the subject. 
 
 In 1910 the Massachusetts House of Representatives 
 asked the supreme court of that state whether the legis- 
 lature could constitutionally authorize the city of 
 Boston to lay out a commercial thoroughfare through 
 the heart of the city and to take by condemnation land 
 on either side thereof in order to replot. and resell the 
 same under restrictions that would insure its use for 
 suitable warehouses, mercantile establishments, and 
 other buildings suited to the needs of commerce and 
 trade. The court replied with an emphatic ''no". "It 
 is plain," the opinion recited, "that a use of the property 
 to obtain the possible income or profit that might enure 
 to the city from the ownership and control of it would 
 not be a public use. . . It is equally true and in- 
 dubitable that a management and use of such property 
 to promote the interests of merchants or traders who 
 might occupy it, and to furnish better facilities for 
 doing business and making profits, would not be a pub- 
 lic use of the real estate."^® 
 
 The three opinions just mentioned are, down to the 
 present time, the only judicial utterances upon the sub- 
 ject of excess condemnation for the "protection" of 
 public improvements. Reading them, one can scarcely 
 escape the conclusion that the last word has not been 
 said. The apparent burden of the Pennsylvania opinion 
 is that "use by the public" involves continuous owner- 
 ship by the public. Almost the entire history of the 
 power of eminent domain belies this notion. If it be 
 
 89 Opinion of Justices, 204 Mass. 607 (1910); reaffirmed in an opinion to 
 the Senate, which had presented the same questions in somewhat modified 
 phraseology; Opinion of Justices, 204 Mass. 616 (1910). 
 
CITY PLANNING— EXCESS CONDEMNATION 141 
 
 conceded, as the Pennsylvania court conceded, though 
 probably only for argument, that the * 'protection" of a 
 public improvement is a ''legitimate public use," is the 
 test of public ownership a proper test to apply? A 
 railway or other public service corporation may be — 
 usually is — vested with the power of eminent domain. 
 If the operation of a railway and the "protection" of a 
 public improvement are equally "public" purposes, how 
 can it be asserted that private ownership is of no im- 
 portance in the one case but is an insuperable objection 
 in the other? What possible difference can there be 
 between the condemnation of property for a privately 
 owned railway, which property becomes impressed with 
 a public use because of the character of railway business, 
 and the condemnation of property for any other private 
 person when the property likewise becomes impressed 
 with a public purpose by reason of limitations that are 
 imposed upon its use? The public has no right of owner- 
 ship in or access to a railway shop; it enjoys the same 
 lack of rights in respect to property acquired and sub- 
 sequently sold under the policy of excess condemnation. 
 Its right in each case consists merely in a right of ser- 
 vice — the right to be carried or to have goods carried in 
 the one, the right to have a highway or other public 
 ground "protected" in the other. A private owner of 
 property condemned and sold under the policy of excess 
 condemnation may be regarded as a "public agent" just 
 as reasonably as may a railway corporation. In other 
 words, it seems perfectly patent that to concede that 
 the purposes indicated by the Pennsylvania law were 
 public purposes was to concede the entire point at 
 issue. 
 
142 CITY PROGRESS AND THE LAW 
 
 The opinion of the Massachusetts court goes more 
 nearly to the core of the issue, whether one agree or 
 disagree with the conclusion reached. It nevertheless 
 appears to fall very far short of a complete analysis of 
 the purposes sought. Every one must recognize that 
 the condemnation and resale of property subject to 
 restrictions as to use operates to transfer the property 
 of one private person to another. This, it would seem, 
 has nothing to do with the case, for so does the con- 
 demnation of property for railway uses. The issue can- 
 not turn upon the matter of private ownership; it is 
 solely an issue as to the nature of the purpose that is 
 sought. Boldly, and probably fairly, stated, the pur- 
 pose that is sought must be rested upon one or 
 more of the following considerations: aesthetics, pub- 
 lic health, or the creation and stabilization of realty 
 values. 
 
 As we have had occasion to note,^^ more than one 
 court has intimated that while the police power may not 
 be exercised for aesthetic purposes, the power of eminent 
 domain might perhaps be employed to that end. As 
 yet, however, no court has actually applied this as a 
 rule of law.^i The pros and cons of this proposition 
 scarcely call for extended discussion. Individual opin- 
 ions will naturally differ after all has been said. Certain 
 it is, however, that a refusal to establish this rule should 
 not be made by a consideration of extreme possibilities 
 — more especially since any attempt to condemn excess 
 property for the purpose of imposing capricious restric- 
 tions in the name of aesthetics would be foredoomed to 
 
 *^ Supra, 67, 77, 79, 94, III, 118, 119. 
 
 " The Massachusetts court approached very near to its application in 
 Attorney-General v. Williams, 174 Mass. 476 (1899), supra, 94. 
 
CITY PLANNING— EXCESS CONDEMNATION 143 
 
 practical failure. Money collected from taxpayers is 
 freely expended in the embellishment of parks and 
 boulevards. The purpose is obviously aesthetic; but 
 nobody is heard to urge that this is a private purpose. 
 A heedless owner, by the use to which he devotes his 
 abutting property, ruthlessly impairs an aesthetic result 
 which the city has sought to create. It does not seem 
 wholly unreasonable that the city should be legally 
 competent to prevent this. The condemnation of this 
 property and its subsequent sale under limitations in 
 respect to its use is certainly one method of prevention. 
 Whether it is the most satisfactory and the most equi- 
 table method is open to debate. But that is a question 
 of policy rather than of law — similar, for example, to 
 the question whether a public improvement should be 
 paid for by special assessments or by general taxation. 
 If it be conceded that it is a public purpose to prevent 
 the impairment of an aesthetic value created by the 
 public — ^which is, after all, a complete statement of the 
 question involved — the policy of excess condemnation, 
 pursued for the achievement of that purpose, should 
 doubtless be sustained. In the course of time it doubt- 
 less will be so sustained. 
 
 In spite of themention of "light," 'air,"and ''health,'* 
 in many of the laws which lay down the purposes for 
 which excess condemnation may be employed, it is 
 probably fair to say that in most of them the purpose 
 of protecting the public health is in fact wholly remote. 
 Any reasonable limitation upon the use of private prop- 
 erty in the interest of the public health, as in the case of 
 the regulation of building heights, or the banishment of 
 noxious trades and industries, can be accomplished 
 
144 CITY PROGRESS AND THE LAW 
 
 under the police power. And while it may be argued, 
 as above, that excess condemnation is at least one 
 method by which the interests of the public health may 
 be protected, it is well nigh inconceivable that any city 
 would embark upon a policy fraught with so many 
 economic perils to secure an end which might much more 
 easily be attained by other means. 
 
 The condemnation of excess property might, of 
 course, be undertaken for the purpose of affecting 
 housing conditions; its relation to public health would 
 then be clearly established. In at least one instance in 
 the United States its use has been authorized for this 
 purpose. In 191 2 the supreme court of Massachusetts, 
 upon request for its opinion, informed the legislature 
 that a proposed statute conferring upon the homestead 
 commission power to condemn land for the purpose of 
 erecting workmen's houses would be unconstitutional 
 if enacted. The court saw no further than that ''the 
 home of one wage-earner might be taken by the power 
 of the commonwealth for the purpose of handing it over 
 to another wage-earner." ^^ Ini9i5a constitutional 
 amendment was adopted which directly empowered 
 this commission to use the power of eminent domain 
 for the purpose of relieving congestion of population by 
 providing such houses. Whether this amendment is 
 valid under the federal guaranty of due process of law 
 has apparently not been contested. The proposal that 
 the city should construct workmen's houses either for 
 sale or lease is fairly novel among American municipal 
 functions. So clearly, however, is the purpose in view 
 related to the promotion of public health that it is diffi- 
 
 42 Opinions of Justices, 211 Mass. 624 (1912). 
 
CITY PLANNING— EXCESS CONDEMNATION 145 
 
 cult to see why the use of excess condemnation for such 
 a purpose should not be sustained. 
 
 It has already been noted ^^ that the stabilization of 
 realty values is one of the purposes for which the general 
 policy of zoning cities has been urged. There is no 
 question that the creation as well as the stabilization of 
 such values is likewise one of the purposes for which 
 the policy of excess condemnation has been put forward 
 under the broadly expressed design of "protecting" pub- 
 lic improvements. The mere replotting of abutting 
 lands, whether solely for the absorption of ill-adapted 
 remnants or for the larger purpose of creating indivisible 
 lots of size and shape adapted to particular uses,^'* may 
 doubtless be fairly regarded in this light. The employ- 
 ment of excess condemnation with such an end in view 
 may be said to ''protect the usefulness" of the improve- 
 ment in question; but "usefulness" in this connection, 
 whether the reference be to an indirect "usefulness" to 
 the general public or the more direct "usefulness" to a 
 portion of the public — the purchasers of the newly 
 formed lots — is dependent wholly upon the estab- 
 lishment and maintenance of private realty values. 
 The protection of such values is even more clearly 
 evidenced in a restriction that property along a bou- 
 levard, park, or parkway may be improved only 
 with residences that satisfy certain minimum require- 
 ments. 
 
 It has already been suggested that the time is prob- 
 ably ripe for the inclusion of the stabilization of realty 
 
 *^ Supra, 121 S. 
 
 ** As in the case of the proposed New York waterfront improvements or 
 the proposed commercial thoroughfare in Boston. 
 
146 CITY PROGRESS AND THE LAW 
 
 values among the recognized subjects of the police 
 power. Nothing need be added here to the arguments 
 already adduced upon that point.^^ Surely, however, 
 if this be regarded as a proper subject for police legis- 
 lation, there can be no question that it is likewise a 
 public purpose for which the power of eminent domain 
 may appropriately be exercised. 
 
 Excess condemnation for undefined purposes 
 
 A few of the constitutional provisions and statutes 
 upon this subject, while enumerating purposes similar 
 to those mentioned above, expressly authorize the dis- 
 posal of excess lands "with or without suitable restric- 
 tions." In this category may be placed a Massachu- 
 setts constitutional amendment of 191 1 and several 
 laws enacted pursuant thereto,^^ a Rhode Island con- 
 stitutional amendment of 1916,^^ a Connecticut statute 
 of 1907 applicable to Hartford, and a similar statute of 
 1913 applicable to New Haven.^^ Still another group 
 of amendments and statutes authorize the condemna- 
 tion of excess property without indicating even in 
 general terms the purpose for which the power may be 
 exercised and without making any reference to the im- 
 position of restrictions. Of this character are the New 
 
 *^ Supra, 121 ff. 
 
 « Art. X, Part I, submitted and adopted after the adverse opinions men- 
 tioned, supra, 140. See also an amendment which wan proposed by the gen- 
 eral court in 19 14 but which failed to be reenacted in 191 5; Acts and Resolves 
 of Massachusetts, 1914, p. 799. Ihid., 1912, ch. 186; ihid., 1913, chs. 201, 
 326 (specific street improvements in Worcester); ibid., 1913, ch. 703 (specific 
 street improvement in Salem); ihid., 1912, ch. 715, infra, 148. 
 
 "Alt. XVII. 
 
 *8 Special Laws of Connecticut, 1907, no. 61, sec. 7; ihid., 1913, no. 243, 
 sec. 8. 
 
CITY PLANNING— EXCESS CONDEMNATION 147 
 
 York constitutional amendment of 1913 ^^ and a pur- 
 suant statute applicable to Syracuse, ^^ a New Jersey 
 law of 1870 applicable to Newark,^^ and a Massachu- 
 setts law of 1 913 which vested power in the state high- 
 way commission with respect to a specific street ini- 
 provement.^2 
 
 Now it seems clear that, unless the only purpose of the 
 city is to secure financial recoupment for its outlay or to 
 gather into the public treasury the total increment of 
 value created by the improvement by selling excess 
 lands at a profit above the condemnation awards, the 
 imposition of restrictions is indispensable to the full ac- 
 complishment of any purpose that may he regarded as 
 public in character. Even if the purpose is nothing more 
 than the replotting of the land into ''suitable building 
 sites," it would seem that restrictions are necessary; 
 otherwise there would be nothing to prevent the new 
 owners from defeating the city's purpose by reselling 
 "unsuitable" sites from parts of their holdings. In the 
 absence of restriction in his purchase deed an owner is 
 entirely competent to divide and sell off his land as he 
 pleases; and it is open to grave doubt whether the re- 
 plotting of land could be sustained as a public purpose 
 
 <» Art. I, sec. 7. A proposed amendment of even broader scope was de- 
 feated at the polls in 191 1. A similar amendment was defeated in Wisconsin 
 in 1914. 
 
 " Laws of New York, 1914, ch. 300. 
 
 61 Laws of New Jersey, 1870, ch. 117. This law appointed a commission 
 to purchase or condemn all the property in a section of Newark known as 
 Clinton Hill. After relocating streets and alleys the commission was em- 
 powered to replot the land and sell off the lots. No reference was made to 
 the imposition of restrictions. It is not clear that this was a housing project, 
 although the preamble recited among other things the danger from fire by 
 reason of the narrow streets in the section. The law was apparently not con- 
 tested before the courts. 
 
 M Acts and Resolves of Massachusetts, 19 13, ch. 778. 
 
148 CITY PROGRESS AND THE LAW 
 
 under circumstances which might result in an immediate 
 defeat of the purpose by private persons. ^^ 
 
 It is probable that under every one of these laws the 
 city, becoming the fee simple owner of the land, could 
 resell it subject to restrictions if it chose to do so. But 
 the fact remains that these laws permit the resale without 
 restrictions.^^ On their face the power which they con- 
 fer might be exercised for no public purpose whatever. 
 It seems fair to conclude, therefore, that, at least when 
 they are considered independently of any actual exer- 
 cise of the power conferred, in which a purpose might 
 be disclosed by the character of limitations imposed, 
 they can be sustained as such only upon grounds of 
 finance. 
 
 One law of this kind has been brought before the 
 courts. This was the Massachusetts law of 1912 ^^ 
 which empowered the Salisbury Beach Reservation 
 Commission to condemn certain lands along the sea- 
 shore, and to sell or lease, with or without restrictions 
 as to use, such parts thereof as might not be needed for 
 a public reservation. The court very promptly, and 
 it would seem very properly, declared this statute void 
 
 6s Of course it may be argued that, having replotted the land to advantage, 
 the city may trust the rest to the good sense and the business judgment of the 
 purchasers. But the law must take account of possibilities, especially when, 
 as in this case, it is proposed to use an important power of government for a 
 borderland purpose. 
 
 " The New York constitutional amendment merely permits the legis- 
 lature to authorize cities to condemn excess property. The validity of this 
 constitutional provision, as a federal question, could be contested only in 
 connection with some statute enacted pursuant thereto. It is certain that 
 the legislature in enacting such a law could define purposes and require the 
 imposition of restrictions. Of the two laws enacted under this provision, one 
 required restrictions (Laws of New York, 1915, ch. 593) and the other did 
 not {ibid., 1914, ch. 300). 
 
 56 Acts and Resolves of Massachusetts, 191 2, ch. 715. 
 
CITY PLANNING— EXCESS CONDEMNATION 149 
 
 on the ground that no public purpose was disclosed. ^^ 
 The constitutional amendment of 1911, which author- 
 ized excess condemnation, was not even referred to in 
 the course of the opinion that was handed down. 
 
 Excess condemnation for financial profit 
 
 Both in law and in practice the policy of assessing 
 upon adjacent property (on the theory of special benefit 
 conferred) some part or the whole of the cost of certain 
 public improvements is firmly established in the United 
 States. So far as mere recoupment for outlay is con- 
 cerned, this policy, it would seem, ought to satisfy the 
 necessities of the case; where there are constitutional 
 or statutory prohibitions against assessing the entire 
 cost of the improvement, let these prohibitions be re- 
 moved, if complete recoupment is the end that is sought. 
 It sometimes happens, however, that the unearned 
 increment of value created by a public improvement is 
 far in excess of its total cost. Why should not the 
 public secure this entire increment to itself by condemn- 
 ing the adjacent land at its value before the improve- 
 ment is made, and selling it at its increased value after 
 it is made? 
 
 Unearned increments in city land values are due to a 
 variety of causes. Public improvements, even if they 
 be only ordinary street improvements, are perhaps al- 
 ways contributory; occasionally, they are the sole cause 
 of a direct and measurable increment. It may seem a 
 small step to cross from the policy of levying special 
 assessments, by which a part of the unearned increment 
 
 w Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371 
 (1913). 
 
ISO CITY PROGRESS AND THE LAW 
 
 is intercepted, to a policy of excess condemnation under 
 which the whole of it might be secured to the public. 
 Doubtless the principal difference lies in the fact that 
 special assessments are very nearly, if not quite, as- 
 similable to ordinary taxes, while the acquisition of land 
 for the more or less speculative purpose of reselling it 
 at a profit is more nearly assimilable to ordinary busi- 
 ness. 
 
 We have no judicial opinions directly in point upon 
 the validity of excess condemnation when undertaken 
 for financial profit. The nearest approach to a con- 
 sideration of such a question is found in certain cases 
 which deal with the competence of cities to acquire land 
 generally for purposes of gain — in other words, to go 
 into the real estate business." Most of these cases have, 
 however, involved merely questions of charter power 
 and not a question of constitutionality. Moreover, in 
 any event, it may be strongly argued that the taking of 
 land for the purpose of securing an unearned increment 
 that is directly and entirely traceable to a specific pub- 
 lic improvement may be distinguished in kind from the 
 acquiring of land for the more general purpose of profit- 
 ing by rents or of securing unearned increments that 
 are due to a combination of indeterminate causes. It 
 seems unnecessary, therefore, to discuss these cases in 
 detail. 
 
 Whatever bearing these cases may have upon the 
 question whether excess condemnation may be used for 
 
 B7 First Municipality of New Orleans v. McDonough, 2 Rob. (La.) 244 
 (1842); New Shoreham v. Ball, 14 R- I- 566 (1884); Champaign v. Harmon, 
 98 111. 491 (1881); Hayward v. Red Clifif, 20 Col. 33 (1893); Hunnicutt v. 
 City of Atlanta, 104 Ga. i (1898); Libby v. City of Portland, 105 Me. 370 
 (1909). 
 
CITY PLANNING— EXCESS CONDEMNATION 151 
 
 the making of financial profits, it should be borne in 
 mind that no constitutional provision or statute upon 
 this subject has as yet specifically named this as a pur- 
 pose. It is highly improbable that the courts would 
 be inclined to sustain this as a public purpose under 
 those statutes which apparently permit the condemna- 
 tion of excess property for purposes that are wholly 
 undefined. 
 
 Alternatives to excess condemnation 
 
 With the exception of replotting (including the ab- 
 sorption of remnants), which would manifestly involve 
 changes of title, it is probable that every one of the 
 purposes for which excess condemnation has been put 
 forward could be accomplished by action short of a 
 complete taking of title to the land. The interests of 
 aesthetics and public health, and the creation and stabi- 
 lization of realty values by imposing conditions as to 
 use could no doubt be secured by the condemnation of 
 easements merely. ^^ Financial recoupment could be 
 attained by the removal, where they exist, of limitations 
 upon the proportion of the cost of public improvements 
 that may be assessed upon adjacent property. The 
 interception by the public of the whole of the unearned 
 increment created by a public improvement could be 
 brought about by the development of some form of 
 increment taxes. The possibilities that inhere in these 
 alternatives have little, if anything, to do with the 
 primary question of law involved, and may, therefore, 
 be omitted from discussion. 
 
 »«As in the case of the Copley Square project; Attorney-General v. 
 Williams, 174 Mass. 476 (1899); supra, 94. 
 
152 CITY PROGRESS AND THE LAW 
 
 From the analysis that has been attempted above, it 
 seems obvious that the legal obstacles arising out of the 
 rule of public use or purpose in its application to excess 
 condemnation, although large and somewhat compli- 
 cated, are not necessarily insuperable. That there has 
 been so little actual employment of the policy in spite of 
 the number of laws authorizing its use may perhaps be 
 taken to indicate that there are practical objections, 
 due to patent financial hazards, which loom quite as 
 large as any obstruction ascribable to the law. In due 
 time the legal issue will be settled by the United States 
 Supreme Court. In the meantime, it would seem the 
 part of wisdom that the purposes for which excess con- 
 demnation may be used should be written as clearly as 
 possible upon the face of the constitutional provisions 
 and statutes dealing with the subject. 
 
CHAPTER VI 
 
 MUNICIPAL OWNERSHIP OF PUBLIC 
 UTILITIES 
 
 The term * 'public utility" has not received any con- 
 siderable amount of definition at the hands of the 
 American courts. In the state of Oklahoma, however, 
 where this term is employed in the constitution of 
 1908, the courts have been called upon to give it some 
 precision of meaning. It has been held that the term 
 *' public utility" is synonymous with the term "public 
 use;" such things, therefore, as sewers,^ convention 
 halls,2 public parks,^ and fire departments ^ have been 
 declared to be public utilities. Defined in this manner 
 it seems obvious that the term in question loses prac- 
 tically all of its distinctive meaning. Any and every 
 function undertaken by a city could be gathered under 
 its expansive wings. 
 
 What is a public utility ? 
 
 It seems certain that the popular concept of the term 
 "public utility" is not in harmony with the views of the 
 supreme court of Oklahoma. It may be difficult to de- 
 fine the term with exactness, but it has unquestionably 
 
 ^ State ex rel. Edwards v. Millar, 21 Okla. 448 (1908). 
 
 2 State ex rel. Manhattan Construction Co. v. Barnes, 22 Okla. 191 (1908). 
 
 ' City of Ardmore v. State ex rel. Best, 24 Okla. 862 (1909); Barnes v. 
 Hill, 23 Okla. 207 (1909). 
 
 * Coleman v. Frame, 26 Okla. 193 (1910); Oklahoma City v. State, ex 
 rel. Edwards, 28 Okla. 780 (191 1). 
 
154 CITY PROGRESS AND THE LAW 
 
 been associated with those functions which necessitate 
 the making of such pecuHar uses of the public highways 
 or waters as to require (if privately owned and oper- 
 ated) a grant of special privilege from the government, 
 or with functions in which, because of their monopolistic 
 or quasi-monopolistic character, the public has a peculiar 
 interest. One or both of these elements certainly enters 
 into the meaning of the term "public utility" as it is 
 commonly understood and employed. There is no 
 doubt, also, that the method by which certain municipal 
 functions are financed has considerable influence in de- 
 termining the general concept of the term. From the 
 viewpoint of economic theory it may be that a payment 
 for gas or water is a private price when it is made to a 
 private corporation, but is a fee (and, therefore, more 
 nearly assimilable to a tax) when it is made directly to a 
 city that owns and operates its waterworks or gas 
 works. ^ However this may be, it is difficult to make 
 either the courts or the public understand that there is 
 any substantial difference in the character of these two 
 payments. If a city owning a waterworks should decide 
 to supply water without charge to the consumer in pro- 
 portion to his measurable special benefit, and to finance 
 this undertaking by general taxation, there is little 
 doubt that the business of supplying water would in the 
 popular mind cease to be regarded as a public utility. 
 In other words, it is usual to include within the category 
 of public utilities only that group of enterprises which 
 may, under special allowance by the government, be 
 undertaken by private persons for profit or which may 
 
 ^ For a discussion of the economic theories involved see Seligman, Essays 
 in Taxation, ch. IX. 
 
MUNICIPAL OWNERSHIP 155 
 
 be undertaken by the government itself and financed by 
 means of charges imposed upon consumers in proportion 
 to benefit. 
 
 In recent years the term "public utility" has received 
 statutory or constitutional definition in a number of 
 states. These legislative definitions are invariably for- 
 mulated in line with the popular concept of the term as 
 indicated. For example, the public utilities law of Wis- 
 consin defines a public utility as "every corporation, 
 company, individual, association of individuals . . . 
 and every town, village or city that now or hereafter 
 may own, operate, manage or control any plant or 
 equipment . . .for the conveyance of telephone 
 messages or for the production, transmission, delivery or 
 furnishing of heat, light, water or power either directly 
 or indirectly to or for the public."^ To declare that a 
 utility is a person is, perhaps, an interesting example of 
 legislative license in the matter of the English language ; 
 but this law certainly leaves no doubt as to kind of 
 business which the legislature had in mind. A recent 
 amendment to the constitution of California refers to 
 public utilities as ''public works" for supplying the 
 inhabitants of cities with "light, water, power, heat, 
 transportation, telephone service or other means of 
 communication."^ Here again there is no uncer- 
 tainty as to the character of the functions intended. 
 Even in Oklahoma the statutory definition of the 
 term "public utility" is far more nearly in line with 
 the commonly accepted meaning of that term than the 
 definition that has been given by the courts of that 
 
 • Laws of Wisconsin, 1909, ch. 499, sec. i. 
 ' Art. XI, sec. 19, adopted in 191 1. 
 
156 CITY PROGRESS AND THE LAW 
 
 state. ^ Indeed, it seems safe to conclude that, gener- 
 ally speaking, the legal conception of what is and what 
 is not a public utility is fairly in accord with the popu- 
 lar conception of what the term connotes. 
 
 The ^^ municipal purpose^* bogy 
 
 We have already had occasion to refer to those gen- 
 eral rules of our law which assert that taxes may not be 
 imposed and the power of eminent domain may not be 
 exercised for other than a public purpose.^ A number 
 of our state constitutions also expressly declare or 
 clearly imply that cities may be granted the power to 
 levy taxes only for "municipal" or ''corporate" pur- 
 poses. ^^ While the distinction between "public purpose" 
 and "municipal purpose" has apparently not been much 
 discussed by the courts, it is manifest that the former, 
 although more comprehensive, is completely inclusive of 
 the latter. Every municipal purpose is a local public 
 purpose; but there are probably public purposes which 
 are not regarded as local and, therefore, are not munici- 
 pal.ii 
 
 There are a considerable number of cases in the books 
 involving the question of whether taxes imposed for the 
 
 * Laws of Oklahoma, 1907. P- 190, sec. 3. 
 
 9 Supra, ch. V. 
 
 *° Index Digest of State Constitutions, p. 1395 ff. 
 
 ^^ At the same time it should be noted that this contention has seldom 
 been raised. For example, education is commonly regarded as of state 
 rather than of local concern; but it has probably never been urged that a 
 city may not be authorized or compelled to impose taxes for this purpose 
 on the ground that it is not a municipal purpose within the meaning of the 
 constitutional clauses here under consideration. On this point see McBain, 
 Due Process of Law and the Power of the Legislature to Compel a Municipal 
 Corporation to Levy a Tax or Incur a Debt for a Strictly Local Purpose, in 14 
 Columbia Law Review, 407-409. 
 
MUNICIPAL OWNERSHIP 157 
 
 acquisition of this or that pubHc utility are or are not 
 taxes levied for a municipal purpose. It seems unnec- 
 essary, however, to review these cases. As might be ex- 
 pected, the courts have almost universally held that 
 the ownership of a public utility by a city is a municipal 
 purpose. ^2 Indeed, it is difficult to comprehend how the 
 contrary contention could be seriously put forward in 
 modern times. 
 
 Municipal ownership under constitutional sanction 
 
 There is a common impression abroad in the United 
 States that the powers which cities enjoy to own and 
 operate public utilities are very narrowly limited by law. 
 While there are, of course, considerable variations in re- 
 spect to this matter, it is nevertheless true that, so far 
 as naked legal power is concerned, many cities enjoy a 
 wide margin of unexercised competence in this regard. 
 In such cases the failure of the city to own and operate 
 is due either to an absence of local sentiment in favor of 
 publit ownership, which in turn may result from one or 
 more of several causes, or to the existence of legal and 
 practical restrictions and complications which, even if 
 they are not insuperable, as they sometimes are, are yet 
 sufficiently formidable to render the prospect of public 
 ownership unattractive and discouraging. 
 
 As far back as 1857 there was incorporated in the con- 
 stitution of Iowa a provision limiting in proportion to 
 the assessed valuation of taxable property within any 
 city the amount of indebtedness which such city might 
 incur. Somewhat similar provisions were thereafter 
 
 ^2 For a discussion of some of the cases in point see Pond, Public Utilities, 
 ch. IV. and passim. 
 
158 CITY PROGRESS AND THE LAW 
 
 incorporated into a large number of state constitutions. ^^ 
 Many of these provisions recognized, however, that a 
 distinction should be drawn between indebtedness for 
 general purposes and indebtedness incurred in connec- 
 tion with the construction or acquisition of public utili- 
 ties. This distinction is based upon the difference, al- 
 ready referred to, in the manner in which public utili- 
 ties are commonly financed. So long as the general 
 property tax constitutes the principal source of munici- 
 pal revenue for general purposes, there exists an obvious 
 relation between the problem of municipal indebtedness 
 and the taxable value of private property within the 
 city. But as a rule, municipally owned utilities are at 
 least approximately self-sustaining. If it be assumed 
 that the fees charged by the city for such utility ser- 
 vices are sufficient in amount not only to pay for main- 
 tenance and operation but also to liquidate indebted- 
 ness incurred for outlay, there is no relation whatever 
 between utility debts and private property values. 
 Upon this assumption — ^which, it may be remarked, has 
 not always been fully justified by experience — many 
 constitutions exempt from the debt limits which they 
 impose upon cities the amount of indebtedness incurred 
 either for one or more specified utilities or for public 
 utilities and revenue producing enterprises generally. ^^ 
 Constitutional provisions of this kind do not in point 
 of fact actually grant to cities any powers of municipal 
 ownership of utilities. They merely regulate matters 
 pertaining to indebtedness in case the legislature should 
 
 ^' McBain, The Law and the Practice of Municipal Home Rule, pp. 
 
 S3. 54. 
 
 ^'^ Index Digest of Slate Constitutions, pp. 126-136. In some instances 
 the debt limit is simply increased for such purposes. 
 
MUNICIPAL OWNERSHIP 159 
 
 authorize such ownership. Within recent years, how- 
 ever, there has been a growing tendency to confer upon 
 cities by constitutional provision broad grants of power 
 to own and operate pubHc utiHties. Thus by an amend- 
 ment to the Colorado constitution adopted in 1902, the 
 city of Denver was authorized to own and operate 
 * 'waterworks, light plants, power plants, transportation 
 systems, heating plants, and any other public utilities.''^^ 
 So under the Michigan constitution of 1908 every city 
 and village is directly empowered to "acquire, own and 
 operate, either within or without its corporate limits, 
 public utilities for supplying water, light, heat, power 
 and transportation to the municipality and the inhabi- 
 tants thereof. ' ' ^^ This apparently generous grant is, how- 
 ever, stripped of most of its possibilities by the proviso 
 that all mortgage bonds issued beyond the general limit 
 of the city's bonded indebtedness shall be ''secured only 
 upon the property and revenues" of the public utility in 
 question. ^^ A similar proviso cripples the force of the 
 Ohio constitutional amendment of 191 2 by which every 
 municipality of the state is authorized to "acquire, con- 
 struct, own, lease and operate, within or without its 
 corporate limits, any public utility the product or 
 service of which is or is to be supplied to the munici- 
 pality or its inhabitants. "^8 
 
 As a matter of reason it may well be argued that if 
 the city is permitted to incur indebtedness for utility 
 
 « Art. XX. sec. i. 
 
 " Art. VIII, sec. 23. 
 
 17 Art. VIII, sec, 24. See Attorney General ex rel. Hudson v. Common 
 Council of Detroit, 164 Mich. 369 (191 1); Attorney General ex rel. Barbour 
 V. Lindsay, 178 Mich. 524 (1914). 
 
 "Art. XVIII. sees. 4. 12. 
 
l6o CITY PROGRESS AND THE LAW 
 
 purposes beyond the limit that is fixed in proportion to 
 taxable values, such excess indebtedness should be se- 
 cured not against the general credit of the city, which 
 rests upon the solid foundation of taxable values, but 
 only upon the property and revenues of the utility for 
 which the indebtedness is assumed. As a matter of 
 practice, however, it will probably be very nearly im- 
 possible for any city to float an issue of bonds on this 
 basis, except, perhaps, at very high interest rates. The 
 reputation of cities for businesslike management is not 
 such as to commend itself to investors as such. Indeed, 
 the ready marketableness of municipal bonds at com- 
 paratively low rates of interest results almost wholly 
 from the fact that enormous values may be tapped for 
 the liquidation of these bonds by the exercise of the 
 power of taxation. 
 
 Under the Oklahoma constitution of 1908, which was 
 closely copied in this respect by the Arizona constitution 
 of 1 91 2, cities are allowed to become indebted ''for the 
 purchasing or constructing of public utilities" with the 
 approval of a majority vote of the property tax-paying 
 voters. Debts for this purpose are not included within 
 the general municipal debt limit established by the 
 constitution. 1^ In California, by an amendment 
 adopted in 191 1, every municipal corporation is em- 
 powered to "establish and operate public works for sup- 
 plying its inhabitants with light, water, power, heat, 
 transportation, telephone service or other means of 
 communication. "20 This power was expressly granted 
 in spite of the fact that most of the cities of California 
 
 " Art. X, sees. 26, 27. 
 20 Art. XI, sec. 19. 
 
MUNICIPAL OWNERSHIP l6i 
 
 have exercised the constitutional power of framing and 
 adopting their own charters, and in spite of the fact 
 that the state supreme court had previously held that 
 this power of home rule included the power to own and 
 operate* 'any such necessary public utility as is generally 
 owned and operated in a city by what is ordinarily 
 known as a public service corporation, such as water- 
 works, gas or electric light works, street railways, etc."^^ 
 In this state no absolute or proportionate debt limit is 
 imposed upon cities by the constitution; there is in 
 lieu thereof a requirement that there shall be a referen- 
 dum upon every proposition to incur a debt in excess of 
 annual income.^^ 
 
 Every one of these states which have conferred powers 
 of municipal ownership by direct constitutional provi- 
 sion have also conferred upon cities general home rule 
 powers. In framing and adopting its own charter, the 
 city may make such provision as it chooses for the own- 
 ership and management of public utilities. Under other 
 circumstances a power of ownership conferred directly 
 by the constitution might in practice be of little avail; 
 for it would be difficult to determine, in the absence of 
 charter stipulation, what specific local authority could 
 act for the city in the matter of acquiring, constructing, 
 and operating any particular utility. 
 
 Municipal ownership under statutory sanction 
 
 It is simply a fact that nearly all the public utilities 
 which are municipally owned in the United States have 
 been acquired under authorization by the legislature, 
 
 2^ Piatt V. San Francisco, 158 Cal. 74 (1910). 
 •2 Art. XI, sec. 18. 
 
I62 CITY PROGRESS AND THE LAW 
 
 rather than by the state constitution. As we have had 
 occasion to note, moreover, the courts have, on the whole, 
 been more Uberal than otherwise in their construction of 
 the charter powers of cities in this respect. More than 
 one city has been permitted to own and operate a public 
 utility under an implied — and sometimes only a vaguely 
 implied — competence. ^^ Because of wide variations and 
 the infinity of details, it is impossible to describe in gen- 
 eral terms the present status of the charters and statutes 
 governing the powers of cities in this respect. A few 
 points of interest may, however, be noted. 
 
 It is easy enough to point to numerous statutes and 
 constitutional provisions which confer upon cities more 
 or less broad powers to own and operate public utilities; 
 but the actual utility situation in most sizeable cities is 
 highly complicated. It is not as if the streets of the 
 city, which are indispensably bound up in the utility 
 problem, were virgin soil. On the contrary, they are 
 already largely occupied; and the opportunities of the 
 city to enter the field as an owner and operator depend 
 largely, if not entirely, upon the terms and conditions of 
 this existing occupancy. Where there is no lack of 
 statutory or constitutional authorization, and where the 
 city desires to embark upon public ownership, what, 
 then, are the more usual opportunities that are avail- 
 able? 
 
 There is, in the first place, an opportunity to occupy 
 such parts of the utility field as are not already occupied 
 by private companies, not as a competitor of such com- 
 panies but as a supplementer. A street railway com- 
 pany is usually limited to a specified traction route and 
 
 » Supra, 44-48. 
 
MUNICIPAL OWNERSHIP 163 
 
 a water company or gas company may be confined to 
 territorial limits narrower than those of the city itself. 
 In such cases the city may embark upon municipal 
 ownership and operation by preempting the unoccupied 
 field. It is obvious, however, that this merely opens to 
 the city the least attractive and potentially the least 
 profitable part of the field. Municipal ownership in the 
 outlying and sparsely settled districts of a city might be 
 justified as a policy adopted in the interest of affecting 
 the housing situation by the development of unim- 
 proved sections; but it ought to be recognized that, if 
 undertaken for such a purpose, immediate financial suc- 
 cess would be highly improbable. The principal diffi- 
 culty, aside from that of finance, is that utilities (and 
 especially transportation, which would be of prime im- 
 portance in such a scheme) cannot always be segregated 
 into district units. Consolidation of connecting units, 
 as well as of competing units, has been one of the prin- 
 cipal characteristics of utility development in this coun- 
 try; and the reasons for the consolidation of connecting 
 units are so obvious as to require no discussion. On the 
 whole, therefore, it can scarcely be said that the oppor- 
 tunity for noncompetitive municipal ownership in areas 
 unoccupied by utility companies is either very large or 
 very tempting. 
 
 Not infrequently, however, the oportunity is open to 
 the city to enter into active competition with existing 
 utility companies. Of course, there are many instances 
 in which private utility corporations have been granted 
 exclusive franchise rights. In such instances the city is 
 powerless to invade these rights under a subsequently 
 conferred power of ownership. The obligation of exist- 
 
I64 CITY PROGRESS AND THE LAW 
 
 ing contracts cannot be impaired. If the exclusive fran- 
 chise is of limited duration, the city can only bide its 
 termination. If the franchise is in perpetuity, the city 
 is, so far as the law is concerned, forever debarred from 
 encroachment, except, perhaps, by the process of con- 
 demnation.24 There are in existence in American cities 
 many exclusive franchises and some of them are both 
 irrevocable and unlimited as to duration. 
 
 The courts, however, prompted by the lead of the 
 United States Supreme Court in a famous case ^^ de- 
 cided in 1837 have adopted and applied a rule of very 
 strict construction in the matter of exclusive franchises. 
 A person (or corporation) must show that the exclu- 
 siveness of his franchise was granted in express and un- 
 mistakable terms; nothing will be taken for granted by 
 general implication. Moreover, as has been noted, ^^ the 
 city itself will not be held to have the power to grant an 
 exclusive franchise unless such power has been ex- 
 pressly delegated. ' 'Such power," says the highest court 
 of the land, "must be given in language explicit and ex- 
 press, or necessarily implied from other powers." There 
 are obvious reasons which, in the absence of the clearest 
 intention, ''insistently forbid that the future should be 
 committed and bound by the conditions of the present 
 time, and functions delegated for public purposes be 
 paralyzed in their exercise by the existence of exclusive 
 privileges. "27 
 
 More especially is this true where the city itself seeks 
 to enter into competition with a private corporation 
 
 ^^ Infra, 170. 
 
 25 Charles River Bridge v. Warren Bridge, 11 Peters 420 (1837). 
 
 2^ Supra, 42. 
 
 27 Detroit Citizens' Street R. Co. v. Detroit Ry., 171 U. S. 48 (1898). 
 
MUNICIPAL OWNERSHIP 165 
 
 which, without being able to show express grant of au- 
 thority, puts forward the contention that it enjoys an 
 exclusive franchise right. The Supreme Court of the 
 United States has expressed itself unequivocally upon 
 this point. For example, the city of Knoxville, Tennes- 
 see, in granting a water franchise to a private corpor- 
 ation, had expressly agreed "not to grant to any other 
 person or corporation, any contract or privilege to fur- 
 nish water to the city of Knoxville, or the privilege of 
 erecting upon the public streets, lanes, or alleys or other 
 public grounds for the purpose of furnishing said city 
 or the inhabitants thereof with water for the full period 
 of thirty years from the first day of August, A.D. 1883." 
 Before the expiration of the thirty years, however, the 
 city decided to construct its own waterworks. Strictly 
 construing the contract into which the city had entered 
 with the waterworks company, the Supreme Court held 
 that *'the stipulation in the agreement that the city 
 would not, at any time during the thirty years com- 
 mencing August I, 1883, grant to any person or corpora- 
 tion the same privileges it had given to the water com- 
 pany, was by no means an agreement that it would 
 never during that period construct and maintain water- 
 works of its own. "28 Although this might "bring hard- 
 ship and loss to the water company and to those having 
 an interest in its property and bonds," the view was ex- 
 pressed that "the court should adhere firmly to the salu- 
 tary doctrine underlying the whole law of municipal 
 corporations and the doctrines of the adjudicated cases, 
 that grants of special privileges affecting the general in- 
 
 ** Knoxville Water Company v. Knoxville, 200 U. S. 22 (1905). Four 
 justices dissented. 
 
i66 CITY PROGRESS AND THE LAW 
 
 terests are to be liberally construed in favor of the pub- 
 lic, and that no public body, charged with public duties 
 be held upon mere implication or presumption to have 
 divested itself of its powers." 
 
 In a recent case^^ involving an attempt on the part 
 of a city to establish a waterworks in competition with 
 a plant owned and operated by a private company, it 
 was pointed out that the city would be called upon to 
 regulate the rates that might be charged by the private 
 company and at the same time endeavor to make a 
 success of the city works. Moreover, the private com- 
 pany was * 'called on to pay taxes to help its rival suc- 
 ceed.'* In answer to these points, the Supreme Court 
 said: 
 
 It is impossible not to feel the force of the plaintiff's argument as 
 a reason for interpreting the constitution [of California] so as to 
 avoid the result, if it might be, but it comes too late. There is no 
 pretense that there is any express promise to private adventurers 
 that they shall not encounter subsequent municipal competition. 
 We do not find any language that even encourages that hope, and 
 the principles established in this class of cases forbid us to resort to 
 the fiction that a promise is implied. 
 
 The constitutional possibility of such a ruinous competition is 
 recognized in the cases, and is held not sufficient to justify the im- 
 plication of a contract.^o . . So strictly are private persons con- 
 fined to the letter of their express grant that a contract by a city not 
 to grant to any person or corporation the same privileges that it had 
 given to the plaintiff was held not to preclude the city itself from 
 building waterworks of its own 3i . . .As there is no contract the 
 plaintiff stands legally in the same position, as if the constitution 
 
 2» Madera Waterworks v. City of Madera, 228 U. S. 454 (1913). 
 
 ^ Citing Hamilton Gas Light and Coke Co. v. Hamilton, 146 U. S. 258 
 (1892); Joplin V. Southwest Missouri Light Co., 191 U. S. 150 (1903); 
 Helena Waterworks Co. v. Helena, 195 U. S. 383 (1904). 
 
 31 Citing Knoxville Water Company v. Kjioxville, 200 U. S. 22 (i905)t 
 and Vicksburg v. Vicksburg Waterworks Company, 202 U. S. 453 (1905)- 
 
MUNICIPAL OWNERSHIP 167 
 
 had given express warning of what the city might do. It is left to 
 depend upon the sense of justice that the city may show. 
 
 In the light of such opinions as this, it may be taken 
 as settled that the field of competition lies open to the 
 city unless it has been bartered away in the most spe- 
 cific terms. Occasionally, as in the case of the New- 
 York subways, which are municipally built though pri- 
 vately operated, a city actually enters into competition 
 with existing utility companies.^^ j^ jg ^ fact, however, 
 that not many cities have done this. They have far 
 more usually, where they enjoyed the power to do so, 
 used the threat of public competition to secure adequate 
 compliance with the terms of franchise agreements or 
 to secure addenda concessions to such agreements in 
 the interest of the public. To these ends potential com- 
 petition by the city itself has been a powerful weapon 
 in the hands of municipal authorities — a weapon which 
 has, of course, been capable of improper as well as of 
 proper uses. * 
 
 In this connection a few words in respect to the 
 general subject of competition in public utility services 
 may not be inappropriate. Time was when, in the 
 effort to secure adequate rates and service from utility 
 corporations, chief reliance was placed upon the opera- 
 tion of the usual economic laws of competition. For 
 a number of reasons, however, competition for this pur- 
 pose proved largely a failure. ^^ It failed even in the 
 
 ^2 The Rapid Transit Acts, by which the power to construct subways 
 was granted to the city, were contested in Sun Printing and Publishing As- 
 sociation V. Mayor etc. of New York, 152 N. Y. 257 (1897), chiefly on the 
 ground that money spent for this purpose was not for a "city purpose." 
 Supra, 156. 
 
 " Wilcox, Municipal Franchises, I, pp. 123-126 and passim. 
 
i68 CITY PROGRESS AND THE LAW 
 
 case of those utilities, such as electric light, in which 
 the physical possibilities of competition were largest. 
 It is true that some elements of competition still sur- 
 vive in the matter of municipal utilities; but, generally 
 speaking, monopoly under municipal ownership or 
 monopoly under private ownership subject to public 
 regulation have come to be recognized as more or less 
 inevitable if not actually indispensable. 
 
 Where conditions exist that call loudly for service in 
 addition to that which is being or Ccin be furnished by 
 existing utility companies, cities have occasionally en- 
 tered the field of competition with no intention of de- 
 stroying the business of these companies or even of 
 compelling them to supply better service or to reduce 
 rates. This was notably true in the case of the New 
 York subways. More usually, however, where a city 
 has the statutory power to enter into competition with 
 a privately owned public utility and where this power is 
 exercised, the enterprise is undertaken for quite dif- 
 ferent purposes. It is commonly an enterprise of last 
 resort. The city, having the resource of general taxa- 
 tion that is unavailable to the private corporation, may 
 operate indefinitely at a loss. Its competitors, there- 
 fore, are very unevenly matched against it. The odds 
 are so greatly in favor of the city that, having once 
 launched its enterprise, there can be no doubt of the 
 result. Ultimately the privately owned utility must 
 either capitulate at the city's terms or suffer itself to 
 be utterly annihilated with a show of heroism that is 
 not usually associated with transactions involving con- 
 siderations of a wholly material character. In other 
 words, when the city enters it enters to conquer and not 
 
MUNICIPAL OWNERSHIP 169 
 
 to play the r61e either of a supplementer or of a mere 
 economic adjuster. In the case of utilities that use the 
 subsurfaces or supersurfaces of streets this is manifest. 
 With ordinary street railways, however, with which we 
 in the United States have had little experience in the 
 matter of public as opposed to private competition, the 
 situation is somewhat modified by physical circum- 
 stances. Even where the city is not legally barred from 
 competition by reason of wholly exclusive grants to pri- 
 vate corporations in designated streets, it may find itself 
 greatly handicapped by the fact that the most available 
 streets are already occupied by tracks while their ca- 
 pacity for carrying tracks is manifestly limited. 
 
 The competence of this or that city to enter the field 
 of competition with private utility corporations has for 
 the most part been the result of inadvertence rather 
 than of design. The city has usually stumbled upon its 
 competence in the course of a struggle toward better 
 utility conditions. The right of the city to compete has 
 rarely, if ever, been expressly recognized in a franchise 
 agreement. It has found its origin chiefly in the ab- 
 sence of express stipulations to the contrary. In re- 
 cently granted franchises of the more approved form, the 
 conflict between the right of the city to be served ade- 
 quately and charged reasonably and of the utility cor- 
 poration to earn an income regardless of public con- 
 siderations has been more squarely met. Specific pro- 
 vision has been made in respect to the rights of the city 
 to take over the utility in question at any time or at 
 specified dates or at the termination of the franchise. 
 Provisions of this kind have, of course, varied ; but ex- 
 cept in cases in which the city has made extraordinary 
 
I70 CITY PROGRESS AND THE LAW 
 
 financial concessions or those in which a scheme of 
 amortization has been provied, they have usually em- 
 bodied the requirement that the city shall pay for the 
 property of the company at an appraised valuation, in 
 which, however, the value of the franchise as such shall 
 not be included. Under such agreements municipal com- 
 petition is effectually excluded. It should be remarked, 
 moreover, that the efficacy of such agreements depends 
 upon whether the utility covered by the franchise can 
 be successfully operated as an independent unit. If the 
 franchise is only a link in a chain of interdependent 
 franchises, it is obvious that the reservation of a right to 
 take over this link is at best only a half-way measure. 
 
 Acquisition by eminent domain 
 
 The power of eminent domain is sometimes conferred 
 upon cities only for a specified list of purposes. Often, 
 however, it is conferred generally for any public pur- 
 pose. Even in private hands a public utility is regarded 
 as a business operated for a public purpose; and the 
 power of eminent domain is often granted to the private 
 owner. Is it possible, then, for a city which has the 
 constitutional or statutory power to own utilities to 
 secure possession of privately owned utilities by con- 
 demnation proceedings under the power of eminent do- 
 main? The law upon this subject is firmly settled in 
 favor of the competence of the city. Thus the New 
 York court of appeals, in a case involving the condem- 
 nation of a waterworks by the city of Brooklyn, sus- 
 tained the validity of such a proceeding by the follow- 
 ing course of reasoning: ^^ 
 
 " In re City of Brooklyn, 143 N. Y., 596 (1894). 
 
MUNICIPAL OWNERSHIP 171 
 
 While the purpose of the waterworks company was public in its 
 nature, it cannot be said to be strictly identical with the municipal 
 purpose. A municipal corporation is a public and governmental 
 agency. It holds property for the general benefit, with a larger scope 
 of use. When acquired by the municipality of Brooklyn, the appel- 
 lant's property would become a part of a general system, under a 
 single management, and conducted essentially as a public work. If, 
 in order the better to serve the public use, the appropriation of private 
 property is necessary, even though it be already devoted to a similar 
 use, the right to make it is incident to the legislative power, and it is 
 necessary for the general good that the right be conceded. All prop- 
 erty within the state is subject to the right of the legislature to appro- 
 priate it for necessary and reasonable public use, upon a just compensa- 
 tion being provided to be made therefor, and there can be no distinc- 
 tion in favor of corporations whose franchisesand operations impart to 
 them a quasi-public character. We think it very apparent that the 
 public use to which the appellant's property i s to be devoted by the pro- 
 visions of the act does differ, and that it is of a higher and wider scope. 
 
 This view was sustained by the United States Supreme 
 Court when the case went forward upon a writ of error.^s 
 To the argument that the superiority of the public pur- 
 pose of the city over against that of the private corpora- 
 tion could be sustained only if the city furnished water 
 without charge to the inhabitants, the court replied : 
 
 That the supply of water to a city is a public purpose cannot be 
 doubted, and hence the condemnation of a water supply system 
 must be recognized as within the unquestioned limits of the power of 
 eminent domain. . . The state, which, in the first place, has the 
 power to construct a water supply system and charge individuals for 
 the use of water, may condemn a system already constructed, and 
 continue to make such charge. This is not turning property from 
 one private corporation to another, but taking property from a 
 private corporation and vesting the title in some municipal corpora- 
 tion for the public use. It is not essential to a public use that it be 
 absolutely free and without any charge to any one. 
 
 " Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 (1897). 
 
172 CITY PROGRESS AND THE LAW 
 
 In spite of the firm establishment of the law upon this 
 point it is nevertheless a fact that few cities have ac- 
 quired utilities by the process of condemnation. This 
 has been due in part no doubt to the novelty of such an 
 enterprise as well as to uncertainty as to whether the 
 power of eminent domain, when granted for general 
 public purposes, could be used for this specific purpose,^^ 
 although it is difficult to see why it might not be so 
 used under such a grant. Further than this, it is a fact 
 of common knowledge that the city pays dearly indeed 
 even for the real property which it acquires by condem- 
 nation proceedings. When it is considered that the ac- 
 quirement of a public utility by this means involves the 
 condemnation not only of real and personal property 
 but also of a business, including the easily swollen ele- 
 ments of franchise value and other intangibles,^^ it is 
 needless to say that the average American city, con- 
 sulting the book of experience, would hesitate before it 
 plunged into a project from which it might find diffi- 
 culty in drawing back. 
 
 Within comparatively recent years the body of case 
 law dealing with the subject of public utilities has, like 
 the body of statute law, increased to enormous volume. 
 Many of the rules that have been laid down with refer- 
 ence to privately owned utilities have been applied with 
 little discrimination to municipally owned utilities. To 
 discuss all of the important rules relating to municipal 
 
 *• In the Brooklyn case the power was conferred by statute for this 
 specific proceeding. 
 
 " It is true, of course, that intangibles are sometimes allowed even in 
 the ordinary condemnation of real property. See, for example. In re Board of 
 Water Supply of New York, 211 N. Y. 174 (1914)- 
 
MUNICIPAL OWNERSHIP 173 
 
 ownership would lead us far into the broad general field 
 of public utilities law. Such an extended excursion is 
 quite impossible here. So far as control by the state is 
 concerned, which is the chief of the modem develop- 
 ments in the utility field, it is sufficient to say that from 
 the strictly legal viewpoint the city as a utility owner is 
 decidedly at a disadvantage when compared with the 
 private owner. The competence of the state to control 
 the city in such matters is referable not only to the na- 
 ture of the business, but also to the nature of the owner, 
 the city being a * 'subordinate political division of the 
 state." Its right to own is not an inviolable contract 
 with the state; and although in a few states the city 
 and the private owner have been placed in the same 
 category with respect to control by a state commission, 
 the case has probably never arisen in which a city has in- 
 voked the guaranty of due process of law to sustain its 
 rates or to defeat imposed requirements as to service. 
 It is true that in the vast majority of instances the 
 state has not attempted to control the city in such mat- 
 ters to any considerable extent. It has properly left the 
 protection of the consuming public's interests to the city 
 itself. But the point remains that so far as the law goes 
 the city could probably find no general constitutional 
 protection against legislative compulsion of free service 
 or of utterly extravagant service should the legislature 
 attempt to exert its power in this regard. 
 
 Perhaps the principal legal advantage which the city 
 enjoys over against the private owner of a utility in the 
 matter of state control lies in its usual freedom from 
 state taxation. Into this phase of the law, however, we 
 cannot here enter. 
 
CHAPTER VII 
 
 CONTROL OVER LIVING COSTS 
 
 There are, of course, many economic factors that 
 enter into the determination of prices, and some of 
 these are certainly subject to control or influence by 
 the government. Combinations in restraint of trade 
 and unfair methods of competition were illegal at com- 
 mon law, and in recent years have been subjected to 
 statutory control under the police power of the states 
 and the commerce power of Congress. Frauds in the 
 use of weights and measures or in the misbranding or 
 adulteration of commodities are likewise sought to be 
 prevented. One of the earliest functions of cities was 
 the maintenance of markets — a function which, in 
 theory, at least — has an effect upon prices. So also 
 the activity of the government in supplying adequate 
 port and terminal facilities ought to affect that large 
 element of price which is chargeable to the cost of 
 transportation. 
 
 But apart from these and perhaps a few other points 
 at which the government may exercise an influence 
 upon price factors, there are doubtless only two con- 
 ceivable methods of direct control. One of these is the 
 fixing of maximum prices that may be charged; the 
 other is government ownership and operation of the 
 business sought to be controlled. The principal ques- 
 tion before us, therefore, is: to what extent, under our 
 constitutional system, may the government regulate 
 
CONTROL OVER LIVING COSTS 175 
 
 business prices or actively enter into the field of busi- 
 ness? 
 
 Early regulation of prices 
 
 Those who are unacquainted with the historical de- 
 velopment of municipal functions in the United States 
 may be surprised to learn that time was when cities 
 exercised a far-reaching measure of control over what 
 we now regard as private business and especially over 
 the business of purveying foods. During the colonial 
 period, for example, the only persons who were per- 
 mitted to carry on practically any kind of business 
 within a city were the so-called freemen, who were 
 admitted to their privileges by a vote of the common 
 council upon the payment of a fee. In other words, it 
 was within the undoubted power of the council, however 
 little that power may have been abused, to create a 
 general legal monopoly of business within the city. 
 But the early city went further than this — it fixed the 
 exact maximum price at which certain commodities 
 might be sold. In colonial New York, for instance, it 
 was customary to regulate with great strictness not only 
 the quality and the size of a loaf of bread, but also the 
 price at which it might be offered for sale. Such regu- 
 lations were varied from time to time in accordance 
 with the market price of wheat; and inspectors were 
 appointed to see that the regulations were complied 
 with. Incidentally, it is interesting to note that in 
 1 741 the bakers of New York City went out on a 
 strike because of the low price that was fixed by the 
 council; and the records of the city disclose that this 
 concerted action "reduced some, notwithstanding their 
 
176 CITY PROGRESS AND THE LAW 
 
 Riches, to a sudden want of Bread." ^ The earliest 
 instance of a regulation of the price of meats by the 
 common council of New York seems to have been in 
 1763. This regulation was bitterly opposed both by 
 the butchers and the farmers, but an effort to get the 
 colonial assembly to nullify the city ordinance was de- 
 feated. In the end, the council modified its regulation; 
 but during the entire controversy, the competence of 
 the city to enact such an ordinance seems not to have 
 been questioned. The city also fixed the scale of prices 
 at which wines, liquors, and beers might be sold. 
 
 The early policy of the city of New York in the mat- 
 ter of regulating the sale of comestibles was also closely 
 connected with its market system, to which reference 
 will be made a little later. It is sufficient to note at this 
 point that, with the exception of bread and liquors, all 
 foodstuffs were specifically required by ordinance to 
 be vended only at the public markets. 
 
 Development of the law governing price regulation 
 
 In the light of the modern conception of municipal 
 functions in this regard, and more especially in the light 
 of modern legal principles, it is highly important to note 
 that circumstances have in the course of time brought 
 about changes of profound signification. It is impos- 
 sible to trace here, even in outline, the development of 
 English and American law governing the relation be- 
 tween government and business. It is a long step from 
 the medieval organization of industry, founded almost 
 wholly upon the principle of legalized and regulated 
 monopoly, to the modern industrial organization, based 
 
 * Journal of the Common Council, April 20, I74i« 
 
CONTROL OVER LIVING COSTS 177 
 
 largely upon the principle of unregulated competition. 
 Between these two lies a stretch of centuries during 
 which philosophies of government as reflected in the 
 principles of the law were undergoing a far-reaching but 
 almost imperceptibly gradual change.^ 
 
 The winning of our independence from Great Britain 
 was accompanied and followed by the adoption of 
 written constitutions containing declarations of indi- 
 vidual rights over against the powers of the govern- 
 ment. It is entirely erroneous to suppose that these 
 strokes of the pen resulted in a sudden break in the law, 
 in the immediate overthrow of an old economic order 
 and an over-night establishment of a new order. The 
 principle of competition in trades and industries had 
 been gaining ground long before the Revolution fell. In 
 the early part of the nineteenth century it came to 
 furnish the very foundation of our industrial organiza- 
 tion. This was probably due, however, far more largely 
 to the wide acceptance of the doctrines of individualism 
 and of laissez faire in matters political than to actual 
 protection extended by the courts under the constitu- 
 tional guaranties in behalf of liberty and of property. 
 Within the last fifty years we have again been moving 
 in the direction of regulating freedom of competition, 
 and the aid of courts has been repeatedly invoked to 
 protect the individual against such interference by the 
 government. It is especially in this later period that 
 the scope of our constitutional limitations upon the 
 government's power to regulate has been unfolded. 
 
 Now it is simply a fact that both the courts and the 
 commentators have, in an effort to establish the con- 
 
 ' Beale and Wyman, Railroad Rate Regulation, 2d ed., ch. I. 
 
178 CITY PROGRESS AND THE LAW 
 
 tinuity of the law, relied for support upon the practices 
 which were pursued and the principles of law which were 
 applied in the era that antedated the establishment of 
 our constitutional system. Thus in the leading modern 
 case upon this subject,^ decided in 1877, the United 
 States Supreme Court said : 
 
 It has been customary in England from time immemorial, and in 
 this country from its first colonization, to regulate ferries, common 
 carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., 
 and in so doing to fix a maximum of charge to be made for services 
 rendered, accommodations furnished, and articles sold. To this 
 day, statutes are to be found in many of the states upon some or all 
 these subjects; and we think it has never yet been successfully con- 
 tended that such legislation came within any of the constitutional 
 prohibitions against interference with private property. 
 
 It is submitted, nevertheless, that if the principles to 
 be applied in the determination of the power of the 
 government to regulate business prices and service are 
 to be found in immemorial custom, the court must be 
 prepared to sustain regulation of a far more extensive 
 character than that which has been attempted in 
 modern times. The court did not intend in this opinion 
 to express the view that the government enjoyed the 
 power to regulate prices in any and every trade or 
 calling. It was only business affected with a peculiar 
 public interest that could be so regulated. It was ev- 
 idently the opinion of the court, although the point was 
 not specifically made, that the customary regulation of 
 the trades enumerated was and always had been 
 founded upon the fact that they belonged in this cat- 
 egory of business. Indeed, in a later case involving 
 
 * Munn V. Illinois, 94 U. S. 113 (1877). 
 
CONTROL OVER LIVING COSTS 179 
 
 precisely the same question'* the court expressly de- 
 clared that ' 'while no general power resided in the legis- 
 lature to regulate private business, prescribe the 
 conditions under which It should be conducted, fix the 
 price of commodities and services, or Interfere with free- 
 dom of contract, and while merchant, manufacturer, 
 artisan, and laborer, under our system of government, 
 are left to pursue and provide for their own Interests in 
 their own way, untrammeled by burdensome and re- 
 strictive regulations, which, however common In rude 
 and irregular times, are inconsistent with constitutional 
 liberty, yet there might be special conditions and cir- 
 cumstances which brought the business . . . within 
 principles which, by the common law and the practice 
 of free governments, justified legislative control and 
 regulation in the particular case."^ 
 
 In other words. It was the view of the court that some 
 businesses are to be regarded as public and others as 
 private, and that now, as formerly, the power of the 
 government to regulate prices and services extends to 
 the former but not to the latter. From the historical 
 viewpoint it Is open to serious question whether the 
 regulatory power of the government as exercised over 
 business in earlier times rested upon any such concep- 
 tion. A recent commentator^ has attempted to show 
 not only that the distinction between public and private 
 business "has not been helpful in practice,'* and Is^'theo- 
 
 * Budd V. New York, 143 U. S. 517 (1892). 
 
 ^ This was part of a paraphrase of the opinion of the New York court of 
 appeals in People v. Budd, 117 N. Y. i (1889), which the United States 
 Supreme Court made and declared to be "sound and just." 
 
 ' Edward A. Alder, Business Jurisprudence, in 28 Harvard Law Review, 
 p. 135. 
 
i8o CITY PROGRESS AND THE LAW 
 
 retically unsound," but also that it is "the result of a 
 misconstruction of the cases upon which it purports to 
 rest as well as of the overlooking of material evidence." 
 He argues with much force that, in consideration of the 
 extensive list of employments that were formerly de- 
 scribed as ''common" occupations, the term*' common" 
 cannot properly be regarded as synonymous with "pub- 
 lic," as it has been in the case of common carriers, and 
 that no evidence whatever has been produced to show 
 that the businesses or * 'common" employments which 
 were formerly subject to special control by the law had 
 in fact any '^exceptional relation to the public."^ 
 
 While it is probably true that the regulatory powers 
 formerly exercised by the government over many kinds 
 of business were not based wholly upon the character of 
 the business but were rather in the nature of survivals 
 from the era of mercantilism, when industry was almost 
 completely organized upon the basis of regulated and 
 
 ' In respect to the argument sometimes advanced that this exceptional 
 relation to the public arose out of monopoly, and that economic changes in 
 this respect account for the disappearance of many trades from the list of 
 those subject to regulation he says: "When we consider the principle of 
 monopoly as producing in the early days the supposed distinction between 
 classes of callings, its failure is clearly apparent, for no evidence of any kind 
 is offered that carriers were less numerous than butchers, or that innkeepers 
 were fewer than carpenters, or barbers than weavers. Tailors were no less 
 numerous than fullers, so far as the evidence goes, and they were, in 1400, 
 numerous enough in Beverley to have a guild of their own. So were the 
 barbers and surgeons, and it is noteworthy that the guild at that time pro- 
 vided for a tax upon itinerant surgeons who were in the town over eight days. 
 Monopoly, therefore, cannot be accepted as an explanation of the distinction 
 between public and private callings, either at present or in the distant past, 
 for it does not explain the distinctions within a calling or account for the 
 difference supposed formerly to exist between such tradespeople as inn- 
 keepers and tailors, and such as carpenters and brewers, and it fails to 
 account for the present-day difference in the treatment of a city hotel, 
 struggling under competition, and a coal company absolutely controlling 
 the coal supply of a city or state." 
 
CONTROL OVER LIVING COSTS i8i 
 
 legalized monopoly, it cannot be too greatly emphasized 
 that the courts do not accept this view. On the con- 
 trary, they hold that the principles now applied in 
 determining the power of the government to regulate 
 are identical with the old principles of the common law. 
 As one commentator has expressed it:^ 
 
 The common law persists from age to age, and though the instance 
 of its rules may be seen to change as old conditions pass away and 
 new conditions arise, its fundamental principles remain. . . 
 Barber, surgeon, smith, and tailor are no longer in common calling 
 because the situation in the modern times does not require it; but 
 innkeeper, carrier, ferryman and wharfinger are still in that classi- 
 fication, since even in modern business the conditions require them 
 to be so treated. With changed economic conditions in modern 
 times new callings have come into being with such potentialities that 
 this special law has been utilized as never before in regulating them. 
 Indeed, from the point of view of one who believes in our common 
 law, the class of public callings is capable of indefinite extension when- 
 ever new conditions bring new employments within its scope. And 
 in all times our law has held to the principles that this peculiar regu- 
 lation was necessary in certain kinds of business. It depends largely 
 upon the opinion current at the time how far this law shall be ex- 
 tended. 
 
 There is no question that this attempt to establish 
 an identity between the principles of modern and of 
 ancient regulation of business has led to confusion and 
 uncertainty, as well as to some obvious contradiction. 
 For example, as we have seen, the highest tribunal of 
 .the land mentioned the baking business among the trades 
 which have been* 'from time immemorial' 'subject to reg- 
 ulation and price-fixing. Moreover, an Alabama case 
 upon this subject, decided in 1841, was cited with ap- 
 
 ' Beale and Wyman, Railroad Rate Regulation, 2d ed., p. 11. 
 
I82 CITY PROGRESS AND THE LAW 
 
 proval. This case ® involved the validity of a municipal 
 ordinance regulating the weight and price of bread — an 
 ordinance which was not at all comparable to the mod- 
 ern municipal ordinances which require, as a protection 
 against fraud, that the weight of a loaf of bread shall be 
 stamped upon it. Referring generally to the power of 
 the government to regulate individual liberty and pri- 
 vate property where the public interest is concerned, 
 the Alabama court said : 
 
 Where a great number of persons are collected together in a town 
 or city, a regular supply of wholesome bread is a matter of the ut- 
 most importance ; and whatever doubts may have been thrown over 
 the question by the theories of political economists, it would seem 
 that experience has shown that this great end is better secured by 
 licensing a sufficient number of bakers and by an assize of bread, 
 than by leaving it to the voluntary acts of individuals. By this 
 means a constant supply is obtained without that fluctuation in 
 quantity which would be the inevitable result of throwing the trade 
 entirely open, and the consequent rise in price, when from accident 
 or design a sufficient supply was not produced. The interest of the 
 city in always having an abundant supply will be a sufficient guar- 
 anty against any abuse of the right to regulate the weight, the conse- 
 quence of which would be to drive the baker from the trade. . . 
 The legislature having full power to pass such laws as is deemed nec- 
 essary for the public good, their acts cannot be impeached on the 
 ground, that they are unwise, or not in accordance with just and 
 enlightened views of political economy, as understood at the present 
 day. The laws against usury, and quarantine, and other sanitary 
 regulations, are by many considered as most vexatious and improper 
 restraints on trade and commerce, but so long as they remain in force, 
 must be enforced by courts of justice; arguments against their policy « 
 must be addressed to the legislative department of the government. 
 
 The argument thus advanced is, of course, not with- 
 out force; but it must be recognized that, since "man 
 
 • Mayor and Aldermen of Mobile v. Yuille, 3 Ala. 137 (1841). 
 
CONTROL OVER LIVING COSTS 183 
 
 does not live by bread alone," it could be applied with 
 equal force to numerous other trades and industries. 
 In this connection it is of interest to note that, although 
 the United States Supreme Court approved this Al- 
 abama decision, the same court at a later date held 
 void a law of New York regulating the hours of labor 
 in the baking business, ^^ which was classed among the 
 ^ 'ordinary trades and occupations of the people. ' ' More- 
 over, in a still later case,^! sustaining the validity of a 
 Chicago ordinance regulating the sizes of loaves of 
 bread that might be sold, the court was careful to point 
 out that the council "had not fixed the price at which 
 bread might be sold;" and there was no intimation that 
 this might have been done and no reference to the 
 "immemorial practice" with respect to the baking trade. 
 
 What is a ** public^ ^ business? 
 
 In spite of the degree of confusion and uncertainty 
 in the law that have resulted from the attempt to main- 
 tain a continuity of thought and purpose between the 
 old and the new principles of regulation, it must be 
 taken as settled that prices and services may be regu- 
 lated only for business that is affected with a peculiar 
 public interest. The question, therefore, is: What are 
 the facts or conditions that establish the public charac- 
 ter of a business? This question cannot be answered by 
 a rule of thumb. 
 
 ^° Lochner v. New York, 198 U. S. 45 (1904). Of course the points in- 
 volved were not identical. It would seem, however, that if the baking 
 business is of so peculiarly public a character as to justify price-fixing, it 
 might certainly be regarded as sufficiently distinctive to require regulation 
 of hours of labor. 
 
 1^ Schmidinger v. City of Chicago, 226 U. S. 578 (1912). 
 
1 84 CITY PROGRESS AND THE LAW 
 
 It is certain that all those lines of business that re- 
 quire a grant of special privilege from the government 
 are within the category of public businesses. These in- 
 clude such lines of business as the usual public utili- 
 ties^2 — ^water, gas, electric current, telephone and tele- 
 graph communication, railway and ferry transporta- 
 tion. Even cabmen, whose fares have for a long time 
 been subject to regulation, fall within this class because 
 of the special uses which they make of the streets for 
 cabstands and the solicitation of trade. It is perfectly 
 easy to comprehend that where a business necessitates 
 a special privilege from the government, which means 
 from the public, that business is of necessity affected 
 with a peculiar public interest. And there is no ques- 
 tion that this is the principal kind of business which is 
 in modern times subjected to control in the matter of 
 charges and service. When, however, we pass beyond 
 this class of business, we emerge into uncertainty. 
 
 Is monopoly an element that establishes the public 
 character of a business? At least three kinds of mon- 
 opoly may be considered. There is, in the first place, 
 natural monopoly, based upon exclusive control of a 
 source or of access to a source of supply. There may, 
 for example, in the case of this or that city be only one 
 available source of water supply; but in the business of 
 furnishing water there exists also the necessity of the 
 special privilege. The fact is that absolute natural 
 monopoly does not often exist; and it is impossible to 
 assert whether or not, in the complete absence of any 
 other element, the law would recognize this as a cir- 
 cumstance which established the public character of the 
 
 " Supra, ch. VI. 
 
CONTROL OVER LIVING COSTS 185 
 
 business. Certainly it is difficult to see how any cir- 
 cumstance could create a larger public interest than 
 the existence of an unquestionable natural monopoly. 
 
 In the second place, there is monopoly in fact — that 
 is, monopoly that exists merely because, although the 
 field of competition is wide open, no competition in fact 
 exists. Of this character is the single grocery store of 
 the village; and indeed it is perfectly manifest that 
 practically any kind of business might find itself in this 
 situation in a community or part of a community in 
 which it operated without actual competition. It may 
 be argued with considerable force that under these cir- 
 cumstances the fear of competition is quite as strong as 
 actual competition in securing adequate service at 
 reasonable prices. ^^ As a general rule this may be true, 
 although it must be recognized that where the market is 
 not large enough to support at least two competitors, 
 the inducement to enter the field is slight. 
 
 It is simply a fact that the government has not often 
 attempted to regulate prices and service because of the 
 existence of monopolies based simply upon fact. Within 
 this class of regulations, however, must doubtless be 
 put a law of Illinois, enacted in 1871, which fixed the 
 maximum rates that might be charged by grain ele- 
 
 ^' In a dissenting opinion read in Budd v. New York, 143 U. S. 517 (1892), 
 Mr. Justice Brewer, omitting any reference to natural monopolies, said: 
 "There are two kinds of monopoly; one of law, the other of fact ... A 
 monopoly of fact any one can break, and there is no necessity for legislative 
 interference. It exists when any one by his money and labor furnishes 
 facilities for business which no one else has. A man puts up in a city the 
 only building suitable for offices. He has therefore a monopoly of that 
 business; but it is a monopoly of fact, which any one can break who, with 
 like business courage puts his means into a similar building. Because of the 
 monopoly feature subject thus easily to be broken, may the legislature 
 regulate the price at which he will lease his offices?" 
 
I86 CITY PROGRESS AND THE LAW 
 
 vators through which most of the grain from the West 
 and Northwest passed en route to the East. This law 
 gave rise to the famous case of Munn v. Illinois, ^^ to 
 which reference has already been made. The court 
 stood upon the general doctrine that "when the owner 
 of property devotes it to a use in which the public has 
 an interest, he in effect grants to the public an interest 
 in such use, and must to the extent of that interest, 
 submit to be controlled by the public, for the common 
 good, as long as he maintains the use."^^ It was only 
 necessary to determine whether the grain elevators in 
 Chicago were property devoted to a use in which the 
 public had an interest. By the following course of 
 reasoning the court concluded that they belonged in 
 this category: 
 
 In this connection it must also be borne in mind that, although in 
 1874 there were in Chicago fourteen warehouses adapted to this par- 
 ticular business, and owned by about thirty persons, nine business 
 firms controlled them, and that the prices charged and received for 
 storage were such "as have been from year to year agreed upon and 
 established by the different elevators or warehouses in the city of 
 Chicago, and which rates have been annually published in one or 
 more newspapers printed in said city, in the month of January in 
 each year, as the established rates for the year then next ensuing 
 such publication." Thus it is apparent that all the elevating facili- 
 ties through which these vast productions "of seven or eight great 
 states of the West" must pass on the way "to four or five of the v'itates 
 on the seashore" may be a "virtual" monopoly. 
 
 It was not alleged that the field of competition in 
 grain elevators was not open to other competitors who 
 
 "94 U. S. 113 (1877). Reaffirmed as to a similar law in New York in 
 Budd V. New York, 143 U. S. 517 (1892). 
 ^^ Quoted from the syllabus. 
 
CONTROL OVER LIVING COSTS 187 
 
 might charge lower rates. It was not alleged that the 
 elevators were on the railways' rights of way and, there- 
 fore, shared in their special privileges granted by the 
 government. So far as the annual rate agreement was 
 concerned it is obvious that this could have been reached 
 by an action brought against a combination or conspir- 
 acy in restraint of trade. Indeed, it seems clear the 
 * Virtual monopoly" which was held to exist here, if it 
 was founded upon anything more substantial than an 
 illegal conspiracy, was at best only a gigantic monopoly 
 in fact. The logic of the case would seem to be that 
 any monopoly in fact is a business affected with a public 
 interest and is, therefore, subject to price and service 
 regulation. It is, nevertheless, of interest to note that 
 in the more than forty years since this decision was 
 handed down, there has been scarcely any development 
 of the policy of regulating business of this kind. ^^ Cer- 
 tainly there is no instance in which a municipal corpor- 
 ation has attempted to regulate business upon this 
 principle. 
 
 Finally must be mentioned those monopolies which 
 are founded upon exclusive legal grants. Every such 
 grant is a special privilege and there can be no question, 
 therefore, of the power of the government to regulate 
 the business of the grantee. Formerly, as has been 
 noted, such monopolies were created in many lines of 
 business. In modem times they are confined almost 
 wholly to the so-called public utilities, it being recog- 
 nized that, generally speaking, the results of regulated 
 monopoly are, so far as the interests of the public are 
 
 ^' The so-called anti-trust legislation, which has not involved regulation 
 of prices, is of a wholly different character. 
 
l88 CITY PROGRESS AND THE LAW 
 
 concerned, superior to those of unregulated competition. 
 Even where a public service corporation is not granted 
 an exclusive privilege, but is subject to possible com- 
 petition, it may for practical purposes be regarded as 
 enjoying a legal monopoly so long as the government 
 refuses or fails to grant any competitive franchise; for 
 the opening of the field of competition in such cases 
 depends upon a legal act. It is a matter of no practical 
 consequence whether the public character of a so-called 
 public utility is rested upon its special privilege or upon 
 the fact that it is a natural, an actual, or a legal 
 monopoly. 
 
 Whether the government, under our constitutional 
 system, has the power to establish a legal monopoly in 
 any line of business that it chooses is open to grave 
 question. The authority to vest in a single corporation 
 the exclusive power to slaughter cattle within a city 
 has been sustained under the power to protect the public 
 health ;i^ and presumably this method of control might 
 be extended to other trades and industries that are 
 subject to regulation under the usual subjects of the 
 police power. Sometimes, also, there is an element of 
 monopoly in the granting of regulatory licenses, as 
 where an absolute limit is set to the number of liquor 
 licenses that may be issued in a city. But restrictions 
 of this latter kind have been applied only to businesses 
 that may be wholly prohibited under the police power. 
 As a rule, a license must be issued to any applicant 
 who satisfies the requirements of the law. The policy 
 of legal monopoly, therefore, plays a very slight role 
 even in the realm of the police power. As a means of 
 
 " Slaughter House Cases, i6 Wall. 36 (1872). 
 
CONTROL OVER LIVING COSTS 189 
 
 controlling prices and services in business generally it 
 would be as doubtful of constitutionality as of pro- 
 priety. 
 
 From this brief review it seems reasonable to con- 
 clude that the existence of monopoly in one or more of 
 its various forms has been of little importance in de- 
 termining the public character of a business except in 
 the case of those businesses which, whether monopo- 
 listic or not, are in any case regarded as affected with a 
 public interest because they require a grant of special 
 privilege from the government. 
 
 Is there, then, any business which, although not re- 
 quiring a special privilege and not entailing any element 
 of monopoly, is nevertheless regarded as a public busi- 
 ness? In the cases upon this subject it is customary to 
 mention among the callings that are subject to control 
 in the matter of prices and service the trades of inn- 
 keeper, miller, drayman, wharfinger, and perhaps one 
 or two others. In point of fact the regulation that is 
 now imposed upon these extends, where it applies at all, 
 to nothing further than the obligation to serve all who 
 come. Their charges are seldom, if ever, regulated in 
 modem times; and even in the matter of obligation to 
 ser\^e there is a considerable element of fiction. In 
 practice there are usually effective ways of avoiding 
 this obligation in the rare instances in which it seems 
 to be desirable to do so. Moreover, it does seem little 
 short of ridiculous to stress the obligation to serve in a 
 few lines of business when a perpetual struggle for an 
 opportunity to serve lies at the foundation of all busi- 
 ness, even though occasionally it be true that the rule 
 of obligation is of some importance. 
 
190 CITY PROGRESS AND THE LAW 
 
 The regulation of the maximum rate of interest that 
 may be charged has sometimes been cited as an instance 
 of regulation of charges by the government; and such 
 it undoubtedly is. It cannot be supported upon the 
 principle either of a special privilege or of monopoly. 
 The argument that the taking of interest was wholly 
 prohibited by the ancient common law and that the 
 later allowance of limited interest is, therefore, in the 
 nature of a privilege is, however true historically, too 
 attenuated to command general acceptance. Doubt- 
 less it ought to be freely admitted that this is at least 
 one instance in which the police power of preventing 
 economic oppression is exercised through the medium 
 of price regulation; although on the same theory, it 
 must be recognized, the price of any and every com- 
 modity or service could be made the subject of like 
 control. In other words, here is a policy of regulation 
 which, without being bolstered up by any theory of 
 special privilege from the government or of monopoly, 
 has survived to us unbroken from the era when such 
 reasons for public regulation of business were unneces- 
 sary. It is certainly difficult to see, at least from the 
 theoretical point of view, why it is any more necessary 
 or advisable to fix the maximum charges at which 
 money may be loaned under the usual competitive 
 conditions of the money market than it is to fix the 
 charges for any other competitive commodity or service. 
 
 On the whole, it seems fair to conclude that while the 
 law on this subject, largely as a result of the attempt 
 to identify the principles of ancient and of modem 
 regulation, is in a state of considerable uncertainty, it 
 is open to serious question whether, under our constitu- 
 
CONTROL OVER LIVING COSTS 191 
 
 tional system, a city could be empowered to regulate 
 business prices generally in the interest of lowering the 
 costs of living. It is probably because of this doubt 
 that there appears to be no active agitation for the 
 trial of this method of solving the problem of living 
 costs. It may be that under the power to regulate 
 interstate and foreign commerce Congress has the con- 
 stitutional competence to fix the prices of all commodi- 
 ties that enter into such commerce. There has been 
 no judicial determination upon this point for the reason 
 that, except as a war measure, which must be wholly 
 distinguished. Congress has never attempted to exercise 
 such power. Even as a war measure it is open to grave 
 doubt whether the states would be competent to fix 
 prices generally or to delegate such authority to cities ; 
 the war power belongs to the national government, not 
 to the states. Upon the theory of emergency, roughly 
 comparable to the emergency which justifies the sum- 
 mary destruction of a building in the path of a sweeping 
 fire or the exercise of almost unlimited powers by health 
 officers in time of great danger, the fixing of prices by 
 states and cities might perhaps be sustained in time of 
 war or other serious calamity. But this is somewhat 
 beside the point of our discussion. 
 
 So far as the law itself is concerned, in its relation to 
 normal economic conditions, it would undoubtedly clar- 
 ify the situation if the courts would frankly declare that 
 the only business that is affected with a public interest 
 (and is, therefore, subject to price regulation) is that 
 which is operating under a grant of special privilege 
 from the government; or, on the other hand, if they 
 would return to the notion which seems probably to 
 
192 CITY PROGRESS AND THE LAW 
 
 have prevailed in earlier times — to wit, that all business 
 which is offered to the public generally is public busi- 
 ness and therefore subject to reasonable regulation. 
 The first of these views would very nearly square the 
 law with existing facts. The other would open up large 
 opportunities for governmental control in cases where 
 the economic laws of competition had apparently failed. 
 The guaranty of due process of law would, of course, 
 as now interpreted, operate to restrain the govern- 
 ment from depriving the individual of the right to 
 earn a reasonable income upon his investment. Whether 
 our success in the field of regulating utility rates and 
 service is sufficient to justify an extension of this 
 practice to other lines of business is wholly a different 
 question. 
 
 Municipal markets 
 
 Mention has been made of the fact that the estab- 
 lishment of public markets was one of the early func- 
 tions of the city. In New York, for example, as far 
 back as 1731, when a new charter was granted to the 
 city by Governor Montgomerie, there were ^ve munici- 
 pal markets in operation. Originally these markets 
 were leased by stalls, but after 1741 all the markets 
 were leased to a single person, who in turn sublet the 
 stalls. Occasionally during the eighteenth century the 
 city was indicted for allowing "Dirt and Nastiness" in 
 its markets; and in the case of the market maintained 
 in the middle of Broadway near the present Liberty 
 street, the city was sued for obstructing the street. 
 Toward the end of the colonial period there was large 
 dissatisfaction among the people and the market system 
 
CONTROL OVER LIVING COSTS 193 
 
 began to break down as a result of the council's oppo- 
 sition to the erection of new markets. 
 
 Public markets have survived to the present day in 
 a considerable number of cities; and although they 
 occupy places of varying importance from city to city, 
 there is no city that relies in any large measure upon 
 them in the matter of its food supply. In recent years 
 interest in the whole subject of public markets, both 
 retail and wholesale, has been revived; and numerous 
 investigations and proposals have been made. Con- 
 cerning the value of the public market and its relation 
 to the cost of living, opinions do not agree. However, 
 a discussion of this question and of the numerous inter- 
 esting reports that have recently been made would 
 take us far afield from our subject. We are dealing 
 with the principles of the law; and there can be no 
 shadow of doubt that the ownership and manage'ment 
 of public markets is an entirely proper municipal 
 function. Indeed it was early held in Massachusetts 
 that, by reason of "long established and well settled 
 usage," towns needed no specific grant oi authority to 
 erect market houses. ^^ 
 
 What lines of business may the city enter? 
 
 Reference has previously been made to the general 
 rule of our law which asserts that taxes may not be 
 imposed for a private purpose. Since taxes are the 
 principal source of municipal revenue in the United 
 States, and since the general credit of the city, which 
 rests upon the power of taxation, is usually behind one 
 
 "Spaulding v. City of Lowell, 23 Pick. (Mass.) 71 (1839). 
 
194 CITY PROGRESS AND THE LAW 
 
 and all of its activities, this rule has an important 
 bearing upon the question of the competence of the 
 state to empower cities to enter directly into the field 
 of business with the end in view of lowering prices or 
 bettering services. It is probable that a few cities have 
 on occasions of apparent emergency actually bought 
 and sold food. Moreover, after the entrance of the 
 United States into the European war, one or two states 
 expressly authorized cities to buy and sell food in time 
 of emergency. ^^ There is, however, no instance in which 
 any American city has attempted, with or without 
 statutory authorization, to adopt this as a permanent 
 policy even on a small scale. As an emergency proposi- 
 tion it is certainly possible that the exercise of such a 
 function might be sustained upon the theory mentioned 
 above in connection with our discussion of price-fixing. 
 But there appears to be no case which directly decides 
 the question whether the buying and selling of food in 
 any circumstance is or is not within the scope of the 
 public purpose rule. 
 
 In respect to a few other lines of business, however, 
 this question has been definitely considered. One of 
 these is the coal and wood business. In 1892 the su- 
 preme court of Massachusetts was asked by the legis- 
 lature whether it was within the constitutional power of 
 the legislature to empower the cities and towns of the 
 state to purchase and sell coal and wood for fuel. Re- 
 
 19 Such laws were enacted at the regular session of the New Jersey legis- 
 lature in 191 7 and at a special session of the New York legislature in the 
 same year. Section 14 of the New York law declared that "any municipality 
 in this state may, in case of an actual or anticipated emergency on account 
 of a deprivation of necessities, by reason of excessive charges or otherwise, 
 purchase food or fuel with municipal funds" and may store or sell the same- 
 Quoted from The New York Times, August 30, 1917. 
 
CONTROL OVER LIVING COSTS 195 
 
 ferring to the public purpose rule, the supreme court 
 
 answered :^^ 
 
 It is not easy to determine in every case whether a benefit con- 
 ferred upon many individuals in a community can be called a public 
 service within the meaning of the rule that taxes can be laid only for 
 public purposes. In general, however, it may be said that the pro- 
 motion by taxation of the private interests of many individuals is not 
 a public service within the meaning of the Constitution. 
 
 The court went on to argue that there was nothing 
 in the history of the adoption of the constitution that 
 gives any countenance to the theory that the buying 
 and selling of such articles as coal and wood for the use 
 of the inhabitants was regarded at the time as one of 
 the ordinary functions of the government which was 
 to be established. Although cities might be authorized 
 to own and operate utilities such as gas and electricity,^* 
 the public character of these rests upon other grounds. 
 Said the court in conclusion: 
 
 But when the Constitution was adopted the buying and selling of 
 wood and coal for fuel was a well-known form of private business, 
 which was generally carried on as other kinds of business were car- 
 ried on; and is now carried on in much the same manner as it was 
 then. It was and is a kind of business which in its relations to the 
 community did not and does not differ essentially from the business 
 of buying and selling any other of^ the necessaries of life. Although 
 all kinds of business may be regulated by the Legislature, yet to buy 
 and sell coal and wood for fuel requires no authority from the Legis- 
 lature, and requires the exercise of no powers derived from the Legis- 
 lature, and every person who chooses can engage in it in the same 
 manner as in the buying and selling of other merchandise. We are 
 not aware of any necessity why cities and towns should undertake 
 this form of business any more than many others which have always 
 
 "Opinions of the Justices, 155 Mass. 598 (1892). 
 
 * Citing Opinion of the Justices, 150 Mass. 592 (1890). 
 
196 CITY PROGRESS AND THE LAW 
 
 been conducted by private enterprise, and we are not called upon to 
 consider what extraordinary powers the Commonwealth may exer- 
 cise, or may authorize cities and towns to exercise, in extraordinary 
 exigencies for the safety of the state or the welfare of the inhabitants. 
 If there be any advantage to the inhabitants in buying and selling 
 coal and wood for fuel at the risk of the community on a large scale, 
 and on what has been called the cooperative plan, we are of the 
 opinion that the Constitution does not contemplate this as one of 
 the ends for which the government was established, or as a public 
 service for which cities and towns may be authorized to tax their in- 
 habitants. 
 
 In 1903 this opinion was reaffirmed j^'^ but in answer 
 to the question whether the city could be empowered 
 to buy and sell fuel in an extraordinary emergency, the 
 court expressed the guarded opinion that in certain 
 emergencies legislation looking to this end might be 
 sustained. 
 
 Quite otherwise was the decision of the supreme 
 court of Maine in respect to the validity of a law of 
 1903 which empowered any city or town to establish 
 "a permanent wood, coal, and fuel yard" and to sell fuel 
 at cost. After an extended discussion of the evolution 
 of public needs and municipal functions, the court 
 argued as follows r^^ 
 
 The petitioners contend . . . that in the case of the distribu- 
 tion of water, and of light and heat by gas or electricity, the use of 
 the public highways is required for the mains and the poles and the 
 wires, that the purpose is public because it is necessary to obtain per- 
 mission from public authorities, either state or municipal, in order to 
 carry it out. We grant that in those cases this element of public per- 
 
 22 Opinion of the Justices, 182 Mass. 605 (1903)- The New York law, 
 mentioned supra, p. 194, n. 19, authorized the purchase and sale of fuel in 
 emergencies. 
 
 "Laughlin v. City of Portland, in Me. 486 (1914). 
 
CONTROL OVER LIVING COSTS 197 
 
 mission exists, but it does not follow that the converse is true and 
 that no purpose is public where such permission does not exist. How 
 can this criterion be applied to the erection of public buildings, the 
 erection of a park, the building of a memorial hall, or of a market 
 house, or the maintenance of a public clock? In other words, under 
 this rule, public service of this sort would be limited to one which can 
 only be performed by a so-called public service corporation and not 
 by an individual or corporation, independent of chartered rights. 
 This is in our judgment too narrow. It makes an incident to some 
 forms of public service an essential element. It transforms the 
 method or means of rendering the service into the essence of the 
 service itself. . . 
 
 Let us look at the question from a practical and concrete stand- 
 point. Can it make any real and vital difference and convert a pub- 
 lic into a private use if instead of burning the fuel at the power sta- 
 tion to produce electricity, or at the central heating plant to produce 
 the heat, and then conducting it in the one case by wires and in the 
 other by pipes to the user's home, the coal itself is hauled over the 
 same highway to the same point of distribution? We fail to see it. 
 It is only a different and simpler mode of distribution. 
 
 In pursuing this line of reasoning the Maine court 
 probably did not mean to imply that there was no dis- 
 tinction between public and private business or that a 
 city might be empowered to undertake any and every 
 kind of business enterprise. Years before, it had been 
 held in the same jurisdiction that towns might not be 
 authorized to go generally into the manufacturing busi- 
 ness; 24 and in the case now at bar the court recognized 
 the necessity of finding some basis upon which the 
 public character of the fuel business might be estab- 
 lished. The opinion continued : 
 
 In the case of fuel the practical difficulty is caused by the existence 
 of monopolistic combinations. . . The difficulty and practical 
 
 "Opinion of Justices, 58 Me. 590 (1871); infra, 240. 
 
198 CITY PROGRESS AND THE LAW 
 
 impossibility of obtaining an adequate supply for private needs at 
 times in the past, and the consequent suffering among the people, 
 especially in the more populous cities, are matters of history, and 
 this difficulty may as well be caused by unreasonable prices as by 
 shortage of quantity. All this is a matter of common knowledge and 
 cannot be overlooked by the court. The supply of water may be in- 
 adequate from one cause, that of fuel from another, but out of each 
 arises the condition which renders the furnishing of it by the munici- 
 pality a public use. 
 
 In other words, here an actual monopoly was alleged 
 to exist — certainly it was neither a legal nor a natural 
 monopoly. Here were resulting conditions — shortage 
 and high prices. Such conditions transformed the fuel 
 business from a private to a public business and justi- 
 fied the entry of the city. It was apparently unneces- 
 sary even to discuss whether these conditions, caused 
 by * 'monopolistic combinations," could be remedied by 
 other legal means, state or federal. ^^^ 
 
 One may sympathise with and even heartily applaud 
 the judgment reached by the court in this case, more 
 especially in view of the apparent failure of our * 'anti- 
 trust" legislation to produce any appreciable effect 
 upon many prices. At the same time one must recog- 
 nize that a legal rule founded upon the economic theory 
 here advanced would go a long way toward destroying 
 the ** public purpose" rule. Perhaps it ought to be 
 destroyed. But would it not be better logic, rnore 
 in accord with legal history, and perhaps in the long 
 run more satisfactory, to declare fearlessly that all 
 
 ^^ See recommendations contained in the Report on Anthracite Coal by 
 the Massachusetts Commission on the Cost of Living, December 27, 1916. 
 Among other recommendations the establishment of municipal coal pockets 
 was proposed. These would, of course, be comparable to ordinary municipal 
 markets. 
 
CONTROL OVER LIVING COSTS 199 
 
 business is public business, and that a city duly 
 authorized may, so far as constitutional principles are 
 concerned, embark upon any business enterprise? 
 Viewed in the light of the slow movement toward 
 municipal ownership of the usual public utilities in the 
 United States, even where legal capacity has not been 
 wanting, it is highly improbable that such a liberal rule 
 would result in a wide and reckless extension of munici- 
 pal trade. 
 
 As the fuel business in New England, so the ice 
 business in the South has been the subject of judicial 
 consideration as a municipal enterprise; and the oppos- 
 ing views are presented by the Georgia and the Louisi- 
 ana courts respectively. Says the Georgia court : ^^ 
 
 If a city has the right to furnish heat to its inhabitants, because 
 conducive to their health, comfort, and convenience, we see no rea- 
 son why they should not be permitted to furnish ice. The object in 
 bringing, by means of a waterworks system, water in pipes from a 
 distance, for use in supplying the needs of a city, is not alone to ob- 
 tain a sufficient quantity, but also to secure that which is freer from 
 impurities than it is possible to obtain in the city itself. If, in the hot 
 season of the year, the inhabitants of the city must, for sanitary rea- 
 sons, relinquish the cool draft from the well, because, as has been 
 demonstrated, wells of pure water cannot be maintained in populous 
 communities, surely the city would have the right, were it prac- 
 ticable, to cool the water which it delivers through pipes as a sub- 
 stitute, and which ofttimes is scarcely drinkable in its heated condi- 
 tion. If not practicable to cool it in the pipes, and if it be necessary 
 to the welfare, comfort, and convenience of the inhabitants that its 
 temperature be lowered before being used for drinking purposes, why 
 can not the city provide for the delivery of such part of it in a frozen 
 condition, to be used in cooling such part of the balance as is to be 
 used for drinking purposes? Is the difference between water in 
 
 2^ Holton V. Camilla, 134 Ga. 560 (1910). There was no question here of 
 charter power, for the power had been expressly granted by the legislature. 
 
200 CITY PROGRESS AND THE LAW 
 
 liquid and in frozen condition a radical one? Upon what principle 
 could the doctrine rest that liquid water may be delivered by the 
 city to its inhabitants by flowage through pipes, but that water in 
 frozen blocks cannot be delivered by wagons or otherwise? . 
 If . . . the furnishing of ice to its inhabitants is conducive gener- 
 ally to their health, comfort, and convenience, it is certainly being 
 furnished for a municipal or public purpose. . . Why, then, in 
 the exercise of its police power, may not a city guard against impuri- 
 ties in the ice, as well as the water, used by its inhabitants? Nor do 
 we see any rational objection to the idea that the city will be engag- 
 ing in a manufacturing enterprise. The city might, perhaps, equally 
 as well be said to be manufacturing when by the use of a filtering pro- 
 cess it changes impure water into that which is pure. When, in con- 
 nection with its waterworks system, it produces ice, it merely, by 
 certain processes, changes the form and temperature of a part of the 
 water supplied by that system. We do not think the operation by 
 the city of Camilla of an ice plant in connection with its waterworks 
 system, or for the purpose of furnishing ice to its inhabitants, is in 
 violation of the sections of the constitution referred to in the plaint- 
 iff's petition, or that it is illegal for any reason. 
 
 To this line of argument the Louisiana court repHes : ^^ 
 
 All analogy between the municipal distribution of water and the 
 municipal distribution of ice is destroyed by the fact that for the 
 one business pipes have to be laid in the public streets, and, neces- 
 sarily, for doing this, the streets have to be torn up and disturbed, 
 whereas the other is a purely competitive business enterprise. There 
 would be analogy between the two if the city were to abandon the 
 sovereign mode of water distribution by means of underground con- 
 duits through the public streets, and to go peddling the liquid, as is 
 done in towns unprovided with waterworks and unblessed by a suffi- 
 cient rainfall for gathering a supply in cisterns, and as has to be done 
 with ice. There would then be complete analogy; but everybody 
 would then see that the town was no longer discharging a sovereign 
 function, but carrying on a private enterprise. 
 
 ^ Union Ice & Coal Co. v. Town of Ruston, (La.) 66 So. 262 (1914)- An 
 act of 1898 authorized any city or town to maintain an ice plant in connec- 
 tion with its waterworks or electric lighting system. 
 
CONTROL OVER LIVING COSTS 20i 
 
 There is probably little to be said in rebuttal. Indeed, 
 the argument of the Georgia court on the ice proposi- 
 tion seems scarcely as satisfactory as that of the Maine 
 court on the fuel question; for the latter court did, in 
 last analysis, rely upon alleged monopolistic conditions 
 to sustain the public nature of the business. The 
 physical analogy between water in liquid and water in 
 frozen form is manifestly no greater than innumerable 
 other analogies that might be drawn; and whether or 
 not a monopoly of fact actually existed in this little 
 city, the court did not rest its decision upon this ground. 
 So far as the police power is concerned, surely it is a new 
 view of the law that the city may go directly into any 
 business that calls for regulation under the police power. 
 However, it is well known that for one reason or 
 another many cities have labored under trying condi- 
 tions in respect to the supply and price of ice. For 
 some time there has been agitation here and there for 
 municipal plants, and one or two cities have actually 
 gone into this business without any judicial controversy 
 having been raised.^^ This does not, of course, affect 
 the unsettled status of the law. 
 
 On the whole it may fairly be concluded that, apart 
 from establishing markets and furnishing terminal 
 facilities, the power of the American city to control 
 living costs is at the present time largely a matter of 
 doubt, with the odds probably against the city. How- 
 ever questionable as to historical origin and however 
 
 2* See Wentworth, A Report on Municipal and Government Ice Plants, 
 submitted to the President of the Borough of Manhattan, City of New York, 
 December 15, 1913. 
 
202 CITY PROGRESS AND THE LAW 
 
 uncertain as to definition, the distinction between 
 public and private business is firmly lodged in the law. 
 We have no concern here with the policy of price-fixing 
 or the merits and demerits of municipal trade. The 
 probability is that there will be a slow expansion of 
 each of these policies under judicial allowance. Those 
 who have affection for legal consistency and precision 
 would doubtless like to see the distinction either rigidly 
 applied or wholly abandoned, in accordance with their 
 respective philosophies of government. Certain it is 
 that if difficulties arising out of the existence of a mere 
 monopoly of fact or of a local combination of dealers 
 are to be regarded as creating a condition which trans- 
 forms a private business into a public business, the rule 
 is already well on its way to the scrap heaps of the law. 
 But it remains to be seen whether the courts will gen- 
 erally accept this view. 
 
CHAPTER VIII 
 
 MUNICIPAL RECREATION 
 
 It is difficult to describe with accuracy the precise 
 functions of government that fall within the concept 
 of the term ''public recreation.'* It is difficult also to 
 determine, as a matter of policy irrespective of the law, 
 the extent to which cities should go in supplying facili- 
 ties for public recreation. It is certain, nevertheless, 
 that the problem of recreation for the people, considered 
 without any attempt at exact definition, bears a tangi- 
 ble relation to more than one of the prime purposes of 
 government. Whatever may be the role of the ''play 
 instinct" in man's psychology, everybody must recog- 
 nize that refreshment of body and mind after toil is 
 indispensable to human health. And however the 
 more or less natural tastes of individuals may differ in 
 the matter of satisfying their need for this refreshment, 
 everybody must recognize that certain forms of recrea- 
 tion are sought by large numbers of people. Again, 
 while it seems unnecessary to elaborate the lines of 
 immediate or indirect connection between recreation 
 and education, it is none the less certain that many 
 such lines exist; and of course the furnishing of facili- 
 ties for education has long been recognized as an 
 appropriate function of government. It is indisputably 
 established, moreover — if indeed any scientific evi- 
 dence on this point were necessary — that modes of 
 recreation, which must of necessity vary largely with 
 
204 CITY PROGRESS AND THE LAW 
 
 opportunity, bear a very definite relation to the sub- 
 jects of delinquency and crime. Surely no one would 
 be hardy enough to argue that punishment for delin- 
 quency and criminality is in itself a social end. Soci- 
 ety's object is the prevention of crime; it is therefore 
 superfluous to argue that any and every means looking 
 toward the attainment of that object is a legitimate 
 function of government. 
 
 As a general proposition, then, it is easy to link up 
 the subject of public recreation with some of the more 
 obvious purposes of government. The only question is : 
 what facilities for recreation should be provided by the 
 government and what principles of our law, if any, 
 have been considered in this connection? 
 
 Parks and playgrounds 
 
 Certainly the most important of the recreational 
 services of American cities is the establishment and 
 maintenance of parks. This term is used generically to 
 cover many different kinds of public grounds. It 
 covers, for example, city squares, commons, and public 
 gardens, which are usually of small area and are located 
 both in residential and business sections. It covers 
 parkways and boulevards, which are more frequently 
 than not streets rather than parks, although they 
 often combine features of both. It covers, of course, 
 the large parks, varying in size, let us say, from two 
 hundred to a thousand or more acres, and including 
 tracts within the built-up section of the city as well as 
 upon its outskirts and sometimes even beyond its terri- 
 torial limits. It covers playgrounds, which themselves 
 vary in character and which usually are independent 
 
MUNICIPAL RECREATION 205 
 
 units although sometimes they are embraced within 
 parks devoted also to other uses. Finally the term 
 park is used to cover certain specialized public grounds 
 such as zoological parks or botanical gardens. In spite 
 of the variations in character and purpose of these 
 several kinds of parks, the essential object of all of 
 them is to afford opportunity for public recreation. 
 
 In an opinion delivered by the United States Supreme 
 Court in 1892 there occur some rather interesting intro- 
 ductory remarks on the subject of the legal aspects of 
 parks. ^ The point as to the public purpose of a park 
 was not at issue in the case, but the court 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 commons 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 Cyclopaedia, 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 pro- 
 viding for their cost, has been uniformly upheld. 
 
 It is doubtless true, as the court here indicated, that 
 the establishment of extensive parks is a fairly modern 
 
 1 Shoemaker v. United States, 147 U. S. 282 (1893). 
 
206 CITY PROGRESS AND THE LAW 
 
 municipal policy. It Is perhaps a mistake, however, to 
 give the impression that the use of the power of eminent 
 domain in the acquisition of park lands was at any 
 time widely contested as a * 'novel exercise of legislative 
 power." In most of the cases which the Supreme 
 Court went on to cite ^ in support of the rule that ''land 
 taken in a city for public parks and squares, by author- 
 ity of law, whether advantageous to the public for 
 recreation, health or business, is taken for a public use," 
 no contention to the contrary was apparently made. An 
 early New York case, decided in 1836,^ may possibly 
 be regarded as an exception. The contention was there 
 urged that the purpose for which property was taken 
 for a public square in the city of Albany was * 'not public, 
 because the benefit is limited to, and the expense as- 
 sessed upon a few individuals." In answer the court 
 said: 
 
 Private property is taken for public use, when it is appropriated 
 to the common use of the public at large. A stronger instance can- 
 not be given, than that of a lot of an individual in a city converted 
 into a street; the former owner has no longer any interest in or con- 
 trol over the property, but it becomes the property of the public at 
 large, and under the control of the public authorities. A public 
 square depends on the same principles; it is for public use, whether 
 it is intended to be travelled upon or not. The mode of compensa- 
 tion for such property is not important. 
 
 ^ Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (1871); In re 
 Commissioners of the Central Park, 63 Barb. (N. Y.) 282 (1872); Owners 
 of Ground v. Mayor of Albany, 15 Wend. (N. Y.) 374 (1836); Holt v. Com- 
 mon Council of Somerville, 127 Mass. 408 (1879); Foster v. Boston Park 
 Commissioners, 131 Mass. 225 (1881); also 133 Mass. 321 (1882); St. 
 Louis County Court v. Griswold, 58 Mo. 175 (1874); Kerr v. South Park 
 Commissioners, 117 U. S. 379 (1886). 
 
 ^Owners of Ground v. Mayor of Albany, 15 Wend. (N. Y.) 374 
 (1836). 
 
MUNICIPAL RECREATION 207 
 
 In this case the court was invited to consider an action 
 involving not only appropriation of property by emi- 
 nent domain but also the policy of paying for the prop- 
 erty by special assessments. Although this latter 
 policy was not wholly novel in 1836, it was by no means 
 common.'* It is probable, therefore, that the allegation 
 concerning the non-public character of the public 
 square in question was prompted chiefly by the fact 
 that it was paid for not by the public at large but by a 
 few private persons. 
 
 In a much later New York case ^it was said that "the 
 courts of this state have repeatedly held that land 
 taken in a city for public parks and squares, by author- 
 ity of law, whether advantageous to the public for 
 recreation, health or business, is taken for a public use; 
 and there appears to be no reason for doubt on the 
 subject." In support of the ''repeated" determinations 
 on this point the court gave no citations of cases. 
 Moreover, even in this case apparently no contention 
 was made that called for any expression of view upon 
 this point. A similar dictum is found in a Massachu- 
 setts case decided in 1879.^ I^i this latter state the courts 
 
 * Rose water. Special Assessments: A Study in Municipal Finance, in 
 Columbia University Studies, 11. 
 
 ^ In re Commissioners of Central Park, 63 Barb. (N. Y.) 282 (1872). 
 
 See also Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 
 (1871), where it was said that lands taken for a public park "are taken for a 
 public use." This view was expressed, however, merely in connection with 
 a discussion of the character of the title which a city acquired in lands taken 
 for park purposes. 
 
 ^ Holt V. Common Council of Somerville, 127 Mass. 408 (1879). The 
 dictum ran: "In the exercise of the right of eminent domain the power to 
 take private propertv for a public purpose is not open to question. There 
 are considerations affecting the public health and comfort of a dense popu- 
 lation, which the Legislature in such caser, may well regard as sufficient to 
 create a public necessity . . . Such necessity affects a large portion of 
 
208 CITY PROGRESS AND THE LAW 
 
 have gone so far as to hold that a town may lay out a 
 road across the private property of a person in order to 
 give the public access to points of "pleasing natural 
 scenery," even though such a road merely made a cir- 
 cuit from the regular highway, led to no other road or 
 landing place, and gave access to lands of no other 
 person.^ This case, however, did not involve any 
 question of park lands and is of interest in this con- 
 nection only because the road in question was mani- 
 festly for purposes of recreation rather than for the 
 usual highway purposes. 
 
 In Missouri the contention was made ^ that the ac- 
 quisition of lands by a county for park purposes was 
 "clearly not for a public use;" but the situation in this 
 case was peculiar. The county of St. Louis was re- 
 quired to establish a park in the vicinity of the city of 
 St. Louis, which was at that time a part of the county. 
 The real objection to the act was that it required the 
 county to pay for an improvement which was primarily 
 for the benefit of the city. There are few, if any, prin- 
 ciples of our law that enable the courts to furnish relief 
 in occasional instances, such as this, of apparent in- 
 justice in the apportionment of local financial burdens. 
 The doctrine that eminent domain can be employed 
 only for a public purpose Wcis obviously put forward in 
 this case in the effort to seek some sort of principle that 
 could be invoked ; and so the argument was advanced 
 "that a public park is a public use only for a munici- 
 
 the community, and cannot ordinarily be met except by the power to take 
 private property, the cost of which, in part, at least, may be imposed upon 
 those who are specially benefited, when that benefit is in part local." 
 
 ' Higginson v. Inhabitants of Nahant, 93 Mass. 530 (1866). 
 
 *St. Louis County Court v. Griswold. 58 Mo. 175 (1874). 
 
MUNICIPAL RECREATION 209 
 
 pality or a center of a dense population, but that it is 
 not demanded for the people of a county." Under these 
 somewhat unusual circumstances, and in spite of the 
 fact that the court did discuss the public purposes of 
 parks, this case should hardly be cited as supporting the 
 view that the court was called upon to refute the con- 
 tention that the establishment of municipal parks is not 
 a public purpose. Incidentally it may be mentioned 
 that Forrest Park, over which this controversy arose, 
 was, shortly after this decision, included within the city 
 of St. Louis and that there was a general adjustment of 
 obligations between the city and the county upon the 
 separation of the two corporate entities. 
 
 It is quite true that there have been numerous cases 
 before the courts involving the construction of statutes 
 providing for the establishment of parks ; ^ but it seems 
 reasonable to conclude that the proposition that the 
 establishment of these primary facilities for public 
 recreation has seldom, if ever, been seriously questioned 
 on the ground that they were not for a public use. Even 
 playgrounds, the most recent of our types of parks, 
 which have within a few years developed with astonish- 
 ing rapidity in American cities, and which involve cer- 
 tain new features, such as the furnishing of directors 
 and the supply of more or less elaborate equipment, 
 seem nowhere to have been contested before the courts. 
 The construction and maintenance in the parks of golf 
 links, tennis courts, skating rinks, gymnasiums, bath- 
 
 ^ See in addition to those cited by United States Supreme Court, supra, 
 Susanna Root's Case, 77 Pa. St. 276 (1875); People ex rel. McCagg v. 
 Mayor etc. of Chicago, 51 111. 17 (1869); People ex rel. Wilson v. Salomon, 
 SI 111. 37 (1869); Cook V. South Park Commissioners, 61 111. 115 (1871); 
 Matter of Commissoners of Washington Park of Albany, fja N. Y. 131 (1873). 
 
210 CITY PROGRESS AND THE LAW 
 
 houses, and fields for baseball and other games are like- 
 wise in the category of uncontested activities. In a 
 recent New Jersey case ^^ the contention was made that 
 a charter grant of authority **to provide for, construct, 
 regulate, protect and improve parks" did not authorize 
 the city of Long Branch to erect a * 'casino" in a park. 
 In answer to this contention which in fact went only 
 to the matter of charter construction and not to the 
 larger question of public purpose, the court replied: 
 
 We think these powers sufficient to include the power to improve 
 newly-acquired parks as well as parks already owned by the city. 
 It was rather suggested than argued that the statute did not author- 
 ize the improvement of the former class. The force of the argument 
 was directed to the point that the erection of a casino was not an 
 improvement of the park. We do not think it necessary to define 
 the word "casino." Obviously, it is a building the use of which may 
 vary from time to time. It is enough, for the present purpose, to say 
 that the proceedings disclose that the building to be constructed is 
 intended for public purposes, either for public amusement or con- 
 venience. Buildings used for such purposes are not uncommon in 
 public parks, and serve a useful purpose not foreign to the purpose 
 of public recreation for which parks are meant. Calling it a "casino" 
 does not alter its character. We think that such a building may 
 fairly be called an improvement. Buildings are commonly spoken 
 of as improvements to the land. A similar opinion was expressed by 
 this court in Knight v. Cape May, 32 Vroom 149, where Justice Collins 
 suggested that the charter of Cape May authorized the erection of a 
 pavilion. 
 
 If it be conceded that the furnishing of facilities for 
 public recreation in parks is an appropriate function of 
 government, or — to emphasize the legal point — is a public 
 purpose, it is difficult to see how a line of legal inhibition 
 could be drawn against any of the newer facilities with 
 
 ^° Ross V. Long Branch, 73 N. J. L. 292 (1906). 
 
MUNICIPAL RECREATION 21 1 
 
 which parks have been and are being provided. The 
 extent to which the government shall go in this direc- 
 tion is a matter of policy rather than of law.^^ 
 
 Public hallsy auditoriums, opera houses, theaters 
 
 Outside of New England it is in comparatively re- 
 cent years that American cities have entered into the 
 field of erecting and maintaining public halls, audi- 
 toriums, or theaters; and even now this function as an 
 enterprise of the city itself is exceptional. In New 
 England the existence of the town meeting as a primary 
 institution of government early gave rise to the neces- 
 sity for a hall in which the voters might assemble. Not 
 all the towns have found it necessary to own and main- 
 tain halls for this purpose; but many of them have done 
 so. Obviously, however, a hall is needed only occa- 
 sionally for town-meeting uses; it is not surprising, 
 therefore, that, combining thrift with public spirit, 
 these towns have sometimes constructed their halls with 
 reference to uses other than the now-and-then assem- 
 blages of electors. Nor is it surprising that the legal 
 aspects of the subject of town halls occupy a place in 
 the judicial records of this section of the country. 
 
 In Massachusetts towns have since the year 1692 been 
 empowered to make appropriations for certain specified 
 purposes and for ''other necessary charges." The mean- 
 
 " In Bloomsburg Improvement Co. v. Bloomsburg, 215 Pa. St. 452 (1906) , 
 it was held that a borough had no charter power to lease from a private 
 owner a pleasure park, containing a dancing pavilion, refreshment booths, 
 boating facilities, etc., and to operate it upon an admission fee basis. The 
 issue was merely as to statutory power; but the court, evidently much 
 opposed to the policy involved, said: "The people of Bloomsburg had no 
 need of such a place for the purpose of good air, nor for recreation." 
 
212 CITY PROGRESS AND THE LAW 
 
 ing of this phrase ' 'other necessary charges" has been fre- 
 quently before the courts for consideration in connection 
 with the erection of town halls. ^^ j^ j^^s been uni- 
 formly held that the expenditure of money for a town 
 hall is a necessary charge and that the incidental use of 
 such a hall for purposes other than the meetings of the 
 voters and the housing of town offices did not vitiate 
 the public character of the enterprise. So also where a 
 town had accepted land dedicated for the erection of a 
 town hall it was held that the use of the hall for other 
 purposes, such as the meetings of political parties, agri- 
 cultural societies, and conventions and the holding of 
 public lectures did not violate the terms of the deed.^' 
 
 In a Maine case the court declared that a town did 
 not exceed its authority when it contracted to allow a 
 dramatic company to use its town hall for a period of 
 six years, when not needed for town purposes, in con- 
 sideration of expenditures to be made by the company 
 for improving the building. ^^ And in Vermont the con- 
 struction and maintenance of an opera hall in connec- 
 tion with a town hall was likewise sustained. ^^ On the 
 same principle school buildings^^ and city halls ^^ might 
 
 ^2 stetson V. Kempton, 13 Mass. 272 (1816); Spaulding v. Lowell, 23 
 Pick. 71 (1839); French v. Quincy, 3 Allen 9 (1861); George v. School Dis- 
 trict, 6 Met. 497 (1843); Oliver v. Worcester, 102 Mass. 489 (1869); Worden 
 V. New Bedford, 131 Mass. 23 (1881); Kingman v. Brockton, 153 Mass. 255 
 (1891); Commonwealth!;. Wilder, 127 Mass. i (1879); Hadsell i;. Hancock, 
 3 Gray, 526 (1855); Friend v. Gilbert, 108 Mass. 408 (1871); Tindley v. 
 Salem, 137 Mass. 171 (1884); Little v. Holyoke, 177 Mass. 114 (1900). 
 
 13 French v. Inhabitants of Quincy, 3 Allen (Mass.) 9 (1861). 
 
 "Jones V. Inhabitants of Sanford, 66 Me. 585 (1877). 
 
 1"^ Bates V. Bassett, 60 Vt. 530 (1888). 
 
 1^ George v. School District in Mendon, 6 Met. (Mass.) 497 (1843); 
 Greenbanks v. Boutwell, 43 Vt. 207 (1870). 
 
 "Parker v. Concord, 71 N. H. 468 (1902); Worden v. New Bedford, 
 131 Mass. 23 (1881). 
 
MUNICIPAL RECREATION 213 
 
 be erected so as to be used for purposes incidental or 
 collateral to their primary uses. 
 
 Even outside of New England the courts have 
 apparently been disposed to allow public buildings to 
 be constructed for, or being constructed, to be used for, 
 purposes not related to their principal and obviously 
 governmental use. Thus ih Wisconsin a city was per- 
 mitted to lease a newly erected city hall for theatrical 
 performances, concerts, lectures, shows, dances, and 
 general entertainments.^^ And in Missouri a town was 
 allowed to accept a dedication of land for the erection 
 of a public building under the stipulation that the 
 building should contain a public hall.^^ In this latter 
 case the court remarked: 
 
 A hall in which the trustees might find it proper to conduct their 
 sessions in public, in which elections may be held, and where the in- 
 habitants of the town may assemble to consider and discuss matters 
 of public importance, would not, I conceive, be foreign to the uses 
 and benefits to which the property of the corporation may be rea- 
 sonably devoted. Accommodations of this character, such as Inde- 
 pendence Hall or Faneuil Hall, are so familiarly associated with the 
 early history of this nation, as nurseries of its infant liberty, that I 
 am reluctant to believe that, in the course of a century they have 
 ceased to be in accord with the life and weal of American towns. 
 Public halls and popular assemblies are out of place only in govern- 
 ments conducted by despots, where the people have no power and no 
 voice. In a government where they have the right to assemble for the 
 purpose of considering and discussing their public affairs, a conven- 
 ient and commodious hall for them to assemble in, is, in my opinion, 
 a proper and necessary want of the inhabitants of every town. 
 
 While it is certainly true that in many of these in- 
 stances, when the character and actual uses of the 
 
 18 Belle V. Platteville, 71 Wis. 139 (1888). 
 
 " Clarke v. Inhabitants of Brookfield, 81 Mo. 503 (1884). 
 
214 CITY PROGRESS AND THE LAW 
 
 buildings in question are considered, the strictly govern- 
 mental purpose often seems to be in fact incidental 
 rather than primary, the courts have apparently been 
 reluctant to stand in the way of enterprises of this 
 kind. In a Connecticut case, however, a town was 
 prevented from erecting a town hall where the principal 
 part of the building was to be given over to stores and 
 offices which were to be rented.^^ So in a recent Iowa 
 case, 21 involving a question of statutory power rather 
 than of constitutional law, the court expressed itself as 
 follows: 
 
 We are abidingly satisfied that the building, as planned, is not 
 such a one as the town had authority to build. It is in fact an opera 
 house with all the necessary equipment for such a building. The 
 •town offices and the place for the fire department were mere inci- 
 dents to the building. However desirable it may be for rural towns 
 to have a large assembly hall or opera house, it is not within the 
 power of the town council to build it. The officials are not ordi- 
 narily selected to manage theaters or opera houses, and in view of 
 the fact that when so managed the town becomes responsible for 
 their care and safety, and is liable to any one injured by or through 
 the neglect of any one of the officials or employees of the city, it is a 
 burden which should not be assumed. There was no need for such a 
 building for municipal purposes, and it is but a thin disguise to cover 
 a purpose not authorized by law. The burdens of taxation are 
 heavy enough without entering upon any such hazardous enter- 
 prises as are here proposed. Our form of city government is repre- 
 sentative in character and is in no sense like the New England town 
 meeting. Where that system of government obtains a large assem- 
 bly hall is no doubt necessary; but there is no occasion for one where 
 all our elections are by ballot. The room provided in this building 
 was large enough for a county courthouse, and we find nothing in 
 the statutes which will justify such a building. Moreover, we are 
 
 20 White V. Stamford, 37 Conn. 578 (1871). 
 
 ^^ Brooks V. Town of Brooklyn, 146 la. 136 (1910). 
 
MUNICIPAL RECREATION 215 
 
 satisfied that the real intent was to avoid the statutes to which we 
 have referred, and it is our duty to prevent any such evasions. 
 
 In recent years a number of cities have erected or 
 have attempted to erect halls, auditoriums, or theaters, 
 without any pretense that the buildings in question 
 were to be used in part for strictly governmental pur- 
 poses. In Massachusetts, for example, the court sus- 
 tained a statute authorizing a city to erect a memorial 
 hall. The opinion declared i^^ 
 
 This may properly be deemed to be a public purpose, and a 
 statute authorizing the raising of money by taxation for the erection 
 of such a memorial hall may be vindicated on the same grounds as 
 statutes authorizing the raising of money for monuments, statues, 
 gates or archways, celebrations, the publication of town histories, 
 parks, roads leading to points of fine natural scenery, decorations 
 upon public buildings, or other public ornaments or embellishments, 
 designed merely to promote the general welfare, either by providing 
 for fresh air or recreation, or by educating the public taste, or by in- 
 spiring sentiments of patriotism or for the memory of worthy indi- 
 viduals. 
 
 So in a Massachusetts case, ^ decided in 1907, it was 
 held that the city of Lowell could construct a hall to 
 take the place of Huntington Hall, which had been de- 
 stroyed by fire. It was admitted in this case that if 
 the project was colorable, ''masking under the pretext 
 of a public purpose a general design to enter into the 
 private business of maintaining a public hall for gain, 
 or devoting it mainly to any other than its public use 
 as a gathering place for citizens generally, such an 
 
 22 Kingman v. Brockton, 153 Mass. 255 (1891). It was held in this case, 
 however, that the city could not set apart a portion of this building to be 
 used by a G. A. R. post without payment of compensation. This would not 
 be a public purpose. 
 
 23 Wheelock v. City of Lowell, 196 Mass. 220 (1907). 
 
2l6 CITY PROGRESS AND THE LAW 
 
 attempt would be a perversion of power and a nullity 
 and no public funds could be appropriated for it/' It 
 was evidently the view of the court, however, that the 
 use of a hall for "political rallies, conventions and other 
 public meetings of citizens" was ''a strictly public use.'* 
 Emphasis was laid upon the fact that the constitution 
 guaranteed the right of assembly; and the implication 
 was that such a hall merely furnished a place of as- 
 sembly. The competence of the city to furnish a place 
 for public recreation was not mentioned. That the 
 building might be let for private uses, such as en- 
 tertainments and amusements, did not affect its 
 general legal purpose. Looking backward the court 
 said: 
 
 It is hard to overestimate the historic significance and patriotic 
 influence of the public meetings held in all the towns of Massachu- 
 setts before and during the Revolution. No small part of the ca- 
 pacity for honest and efficient local government manifested by the 
 people of this Commonwealth has been due to the training of citi- 
 zens in the forum of the town meeting. The jealous care to reserve 
 the means for exercising the right of assembling for discussion of 
 public topics manifested in city charters by the representatives of 
 the people, whenever providing for the transition from the town 
 meeting to the city form of local government, demonstrates that a 
 vital appreciation of the importance of the opportunity to exercise 
 the right still survives. The practical instruction of the citizen in af- 
 fairs of government through the instrumentality of public meetings 
 and face to face discussions may be regarded quite as important as 
 their amusement, edification or assumed temporal advancement in 
 ways heretofore expressly authorized by statute and held consti- 
 tutional. 
 
 In 1905 the question was presented to the supreme 
 court of Colorado whether the city of Denver could 
 erect an auditorium which was apparently to be used 
 
MUNICIPAL RECREATION 217 
 
 chiefly as a theater.^^ In sustaining this competence in 
 the city the court argued that the existing pubHc build- 
 ings in Denver were wholly inadequate and that the 
 proposed auditorium ought to provide accommodations 
 for a portion of the public offices and public records, 
 although it was not disclosed that such was in fact the 
 intention of the city. It was argued further that since 
 Denver had the power to frame and adopt its own 
 charter a place for public discussions ought to be pro- 
 vided. Moreover it was proper that the city should 
 "own a place where the public can witness the exercises 
 of commencement day of the various high schools of the 
 city," there being no hall at that time sufficiently large to 
 accommodate all the persons desiring to attend such ex- 
 ercises. For these reasons the court concluded that the 
 erection of a municipal auditorium was a proper munici- 
 pal purpose. Here again, it will be noted, the court was 
 at great pains to locate a few obviously public purposes 
 for which such an auditorium might be used. There 
 was no express declaration that the city could own and 
 manage such a building for general recreational pur- 
 poses. The decision, nevertheless, did enable the city 
 to embark upon an enterprise which has in fact been 
 of this general character. 
 
 In 1908 contest arose in Oklahoma over the attempt 
 of the city of Guthrie to issue bonds for the construction 
 of a convention hall.^^ The court held that such a hall 
 was a* 'public utility" within the meaning of that term 
 as it was employed in the state constitution. In dem- 
 
 ** Denver v. Hallett, 34 Col. 393 (1905). 
 
 ^ State ex rel. Manhattan Construction Co. v. Barnes, 22 Okla. 191 (1908); 
 supra, 153. 
 
2l8 CITY PROGRESS AND THE LAW 
 
 onstration of the "public use" of a building of this kind 
 the opinion recited : 
 
 In a government where the right of public assembly for the re- 
 dress of grievances is guaranteed to the people, where the policies of 
 government are in a great measure determined at public gatherings 
 of the people in political conventions, where the lecture platform has 
 become so important a factor in public education, and where people 
 frequently assemble for the purpose of discussing and devising ways 
 and means of promoting their varied interest, a place in large cities 
 where such gatherings may be had under comfortable hygienic con- 
 ditions is not only a public convenience and benefit, but a public 
 necessity. We know of no case in which the question of whether a 
 convention hall is a public use has been determined, but courthouses, 
 jails, schoolhouses, city halls, public markets, almshouses, public 
 parks, boulevards, commons or pleasure grounds, and places of his- 
 toric interest are examples of uses that have been declared by the 
 courts to be "public uses." 
 
 In 1913 the California supreme court decided that 
 the city of San Francisco, under the authority granted 
 by its charter to acquire land for a civic center and to 
 authorize the erection by a private company of "an 
 opera house, museum, or other structure," could not 
 enter into a contract with a musical association by the 
 terms of which the association was to construct a mag- 
 nificent opera house upon ground furnished by the city. 
 The city was to retain the naked legal title to the 
 property but the "beneficial attributes of ownership" 
 were apparently to pass to the association. The court 
 seemed to have the idea that actual ownership and con- 
 trol by the city itself was necessary in order to show the 
 public purpose of a municipal expenditure, although 
 this general idea has been frequently repudiated. ^^ 
 
 "See, for example, Olcott v. Supervisors. i6 Wall. 678 (1872), where this 
 point is directly discussed and dismissed. 
 
MUNICIPAL RECREATION 219 
 
 However, it was clearly intimated that if it had been 
 necessary to decide the point the court would have 
 held that the direct ownership and management of an 
 opera house was a function appropriate to be under- 
 taken by a city. In this instance the proposed enter- 
 prise was interfered with simply because of the alliance 
 which was attempted to be made between the city and a 
 private association. 
 
 Quite otherwise was a decision of the highest court 
 in Louisiana in 1842, sustaining the competence of New 
 Orleans, to subscribe to the stock of a theater company 
 which, strange as the combination may seem, was en- 
 gaged chiefly in the business of fire and marine insur- 
 ance.27 This was in fact prior to the time when the 
 public purpose rule had been announced in its applica- 
 tion to the power of taxation. The court apparently 
 never thought of such a constitutional limitation. "In 
 relation to the acquisition and disposition of property," 
 it was said without a qualm, "this law confers powers 
 as plenary, or nearly so, as are possessed by an indi- 
 vidual." To the mind of the court there seemed to be 
 nothing extraordinary about that. It was incidentally 
 averred, however — and this is the point of interest in 
 this connection — that "the object of the Council in 
 making this subscription, is stated to have been to aid 
 in the construction of a large theater in the Munici- 
 pality, which would contribute to its wealth and 
 embellishment, and afford a place of relaxation and 
 amusement, that would tend to correct the morals and 
 enlighten the minds of the citizens." There was not 
 
 «» First Municipality of New Orleans v. New Orleans Theater Co., 2 Rob. 
 (La.) 209 (1842). 
 
220 CITY PROGRESS AND THE LAW 
 
 the slightest intimation that such an object was not 
 both laudable and legitimate. 
 
 jIn 191 3 the city of Toledo attempted by ordinance to 
 provide for the establishment of a motion picture thea- 
 ter to be owned and operated by the city.^^ The opinion 
 rendered in this case was greatly complicated by reason 
 of the recently adopted home rule provisions of the 
 Ohio constitution. It cannot indeed be said that the 
 question whether a city could be empowered to own 
 and operate a theater of this kind was, as such, directly 
 passed upon by the court. The ordinance in question 
 did not in any wise indicate that the proposed theater 
 was to be used either as a part of the city's educational 
 work or of its recreational facilities. So far as was dis- 
 closed upon the face of the ordinance the city may have 
 been undertaking this enterprise solely for profit. There 
 was no question that the court was influenced by this 
 fact. One of the judges indeed reached his conclusion 
 as to the invalidity of this ordinance solely upon this 
 ground. The best that can be said is that when the 
 several opinions that were handed down in this case 
 are carefully analyzed it seems probable that the 
 majority of the court would not have prohibited a city 
 from erecting and managing a motion picture theater 
 if it had been clearly shown that the enterprise in ques- 
 tion was established as a part of the city's educational 
 or recreational services. 
 
 From this review of cases it seems reasonable to con- 
 clude that in spite of the endeavor of the courts to sus- 
 tain the municipal establishment of public halls, audi- 
 toriums, or theaters, by reference to certain primary 
 
 2 state ex rel. City of Toledo v. Lynch, 88 Oh. St. 71 (1913). 
 
MUNICIPAL RECREATION 221 
 
 uses, or to some of the more obvious public or govern- 
 mental purposes for which such buildings might be 
 established, they have on the whole been more liberal 
 than otherwise in their attitude toward such enter- 
 prises. There is no doubt that as time goes on more and 
 more cities will enter into undertakings of this kind. 
 There seems to be no reason why the courts should not 
 frankly avow that a city may erect buildings of this 
 character under their general power to furnish public 
 recreational facilities. That a city should hire or lease 
 a building of this kind to private persons for theatrical 
 or other performances or entertainments for which ad- 
 mission fees are charged would seem to have nothing to 
 do with the legal problem involved. The city would go 
 into the enterprise because of its public character — its 
 relation to the subject of public recreation — and the 
 publicness of the enterprise would be no more affected 
 by this method of financing it than is the public char- 
 acter of a waterworks destroyed by reason of the fact 
 that its operation is financed by the collection of fees 
 from consumers. 
 
 Entertainments J celebrations, concerts 
 
 While a few American cities have, as has been indi- 
 cated, erected buildings which are leased for perfor- 
 mances and entertainments, no American city has as yet 
 attempted to foster the dramatic and musical arts by 
 furnishing theatrical and operatic performances at low 
 cost, after the manner of many European cities. Our 
 ventures in the field of furnishing such facilities for 
 public recreation have been comparatively insignificant. 
 Yet some law upon the subject has developed. 
 
222 CITY PROGRESS AND THE LAW 
 
 Entertainments for the public must, of course, be dis- 
 tinguished from more or less private entertainments 
 which are occasionally given at public expense. It is a 
 fairly established rule of law that, in the absence at least 
 of express grant of authority, cities may not appropriate 
 money for the entertainment of distinguished visitors. 
 Thus in an early New York case ^^ it was held that the 
 city of Buffalo had no power to provide for an enter- 
 tainment and ball given on Independence Day for citi- 
 zens and ''certain military guests." It does not appear 
 whether the public generally was admitted to this en- 
 tertainment and ball; but the probability is that they 
 were not so admitted. So in a later New York case ^^ 
 it was held that a village had no power to entertain a 
 company of visiting newspaper editors. To the conten- 
 tion that the expenditure had ''been repaid by the effect 
 on the village of subsequent editorial puffs," the court 
 replied that it was "not proper for village trustees to hire 
 editors to praise the attractions of the place ;" and it was 
 ironically added that "if it had been shown that the 
 editors were paupers, then, under the duty of the village 
 to care for the poor, there might have been some pro- 
 priety in keeping them from starving." To the same 
 effect was a Rhode Island case ^^ which prohibited the 
 city of Newport from paying for a ball and banquet 
 given in honor of certain visiting officers of the British 
 navy. Said the court: "The city neither danced at the 
 ball nor feasted at the banquet. It got nothing substan- 
 tial out of them. If the city's money goes to pay for 
 
 '' Hodges V. City of Buffalo, 2 Denio (N. Y.) no (1846). 
 30 Gamble v. Village of Watkins, 7 Hun. (N. Y.) 448 (1876). 
 51 Austin V. Coggeshall, 12 R. I. 329 (1879). 
 
MUNICIPAL RECREATION 223 
 
 them, it will go to pay for what the city neither bar- 
 gained for nor enjoyed.'* 
 
 On the other hand, a Pennsylvania case must, per- 
 haps, be regarded as sustaining the contrary view.^^ 
 Under a general grant of power to enact such ordinances 
 "as shall be necessary for the welfare and comfort of 
 said city," the competence of the city of Philadelphia to 
 appropriate $50,000 **to enable the mayor to extend the 
 hospitalities of the city" to visitors at the centennial ex- 
 position was sustained. The court pointed to the fact 
 that appropriations similar to this had frequently been 
 made by the city without being challenged. And while 
 it was admitted that "it does not profit the great body of 
 the citizens that a few persons should eat and drink at 
 their cost," yet it could not be denied, the court thought, 
 "that public entertainments, temperately supplied, and 
 on occasions of great public interest, may produce a 
 moral effect in which all may share, and conduce to the 
 diffusion of a fraternal feeling in the country at large 
 and throughout the world." 
 
 In none of these cases, it should be remarked, 
 have the courts held that power to provide enter- 
 tainments for distinguished visitors could not be 
 granted to a city. Although the question of public 
 purpose has been discussed, the point at issue was 
 simply whether any such power had in fact been 
 granted by the legislature. It may be said in pass- 
 ing that while power of this kind has seldom been 
 granted in express terms, and while the general rule 
 is that it may not be exercised in the absence of ex- 
 press grant, such expenditures have in fact been made 
 
 '2 Tatham v. City of Philadelphia. 11 Phila.. 276 (1876). 
 
224 CITY PROGRESS AND THE LAW 
 
 by cities in numerous instances that have not been con- 
 tested before the courts. 
 
 Practically the same rule has been applied to the 
 case of entertainments furnished for the public itself. 
 Express power must be shown. Thus in an early 
 Massachusetts case ^^ it was held that a town was not 
 authorized to appropriate money for an anniversary 
 celebration of the surrender of Cornwallis at York- 
 town. And in the same state, as well as in Connecticut^* 
 and New York,^^ appropriations for celebrations on 
 the Fourth of July have similarly been interdicted 
 where no statutory authority could be shown. In- 
 deed, in the earlier cases upon this subject the argu- 
 ments of the court against such expenditures were so 
 broadly expressed that they seemed not only to hold 
 that power had not been granted but also to intimate 
 that such power could not be granted. For example, 
 the Massachusetts court, discussing in 1861 an at- 
 tempted appropriation for a fireworks display on In- 
 dependence Day, expressed itself as follows :^^ 
 
 Viewed in the most favorable light for the respondents, this vote 
 authorized an expenditure of public money to celebrate the anniver- 
 sary of a great event of national and historic interest, in a manner 
 which might serve to amuse the inhabitants, and perhaps excite in 
 their minds a spirit of patriotism and love of liberty. But these ob- 
 jects, however laudable, do not come within the range of municipal 
 powers and duties. If money in the treasury of a city can be ex- 
 pended to commemorate an event of interest and importance in the 
 history of the country, so it may be to celebrate the anniversary of 
 any and every other. . . 
 
 ^' Tash V. Adams, 64 Mass. 252 (1852). 
 
 ^* New London v. Brainerd, 22 Conn. 552 (1853). 
 
 36 Hodges V. City of Buffalo, 2 Denio (N. Y.) no (1846), supra. 
 
 3^ Hood V. Mayor etc. of Lynn, 83 Mass. 103 (1861). 
 
MUNICIPAL RECREATION 225 
 
 Nor would there be any limit to the amount of money which might 
 be expended for such purpose, nor to the mode in which the expendi- 
 ture might be made, except that which might be prescribed by the 
 will or caprice of the majority. If fireworks and illuminations can 
 be permitted, so may dinners, balls and fetes of every description. 
 It is obvious that such a power would open the door for great abuses, 
 and expenditures of the most wasteful character. 
 
 However, at a later date, the same court did not 
 intimate that an act which specifically authorized 
 towns to appropriate money for the celebration of 
 their centennial anniversaries was otherwise than en- 
 tirely constitutional.^^ Moreover, under an act which 
 had been passed immediately after the decision of the 
 fireworks case just mentioned and which authorized 
 cities to appropriate limited amounts ''for the celebra- 
 tion of holidays and for other public purposes," the 
 court went so far as to hold in 1886 that cities could 
 make appropriations for band concerts. ''Taking into 
 account," said the court, "the history and language of 
 the act, the safeguards attached to the exercise of the 
 power, the smallness of the sum allowed to be ex- 
 pended, and the fact that it has long been assumed to 
 be within the power of cities to give such concerts in 
 the open air, we are not prepared to say that a case is 
 presented for an injunction." 
 
 Municipal v. commercialized recreation 
 
 In most American cities of size there is some agita- 
 tion for an extension of public recreational services in 
 one form or another. The use of school buildings for 
 social centers has become widespread within a few 
 
 " Hill V. Selectmen of Easthampton, 140 Mass. 381 (1886). 
 
226 CITY PROGRESS AND THE LAW 
 
 years and is rapidly expanding. The opening of these 
 buildings for such purposes has given rise to certain 
 more or less difficult administrative problems; but up 
 to the present time few if any important questions of 
 law have been involved.'^ 
 
 The prime general problem of the American city in 
 the matter of recreation is the problem of the low-grade 
 commercial amusement. For the most part this prob- 
 lem has been dealt with by the policy of regulation, 
 looking to the elimination of some of the more flagrant 
 evils and dangers that attend upon some of these 
 amusement enterprises. Perhaps nowhere has this 
 policy been wholly satisfactory, although it certainly 
 is not without much to its credit. The only apparent 
 alternative to regulation is for the city itself to furnish 
 counter attractions. No city in this country has as 
 yet adopted this policy to any considerable extent. 
 The only form of entertainment regularly furnished 
 by most cities is the band concert during the summer 
 season — an activity which in the vast majority of 
 instances has gone unchallenged before the courts. A 
 few cities^^ have with varying success inaugurated mu- 
 nicipal dance halls upon a limited scale; and here again, 
 so far as appears, the courts have not been requested 
 to interfere. Band concerts and municipal dances are, 
 however, but scratches upon the surface of a big social 
 problem. If the past general attitude of the courts 
 toward the specific recreational facilities we have con- 
 
 '* In State ex rel. Gilbert v. Dilley, (Neb.) 145 N. W. 999 (1914). the use 
 of a school buiildng for religious meetings was the question before the court. 
 
 '* Boston, Cincinnati, Cleveland, Denver, Milwaukee, San Francisco. 
 See Municipal Dance Halls, Municipal Reference Bulletin No. 2, Chicago 
 Public Library, March, 1914- 
 
MUNICIPAL RECREATION 227 
 
 sidered may be taken as presage of their future attitude, 
 it seems safe to conclude that, in seeking a solution of 
 this problem by furnishing direct recreational services, 
 the city will not be greatly impeded by the barrier of any 
 fundamental principle of the law. 
 
CHAPTER IX 
 
 PROMOTION OF COMMERCE AND INDUSTRY 
 
 With few exceptions it is commerce and industry that 
 call cities into being; but cities are not organized for 
 the purpose of promoting commerce and industry. 
 They are organized to deal with many community 
 problems that grow out of the congestion of population 
 which commerce and industry create. Their prime pur- 
 poses have little to do with the economic forces that 
 govern commercial and industrial activities. It is 
 nevertheless manifest that cities must of necessity 
 touch commerce and industry either directly or in- 
 directly at numerous points, and that it is within their 
 power at times to foster or hinder. Indeed there is 
 scarcely a function of the city which may not conceiv- 
 ably have some reflective effect upon the business con- 
 ditions of the community. We are considering here, 
 however, only such activities as may be conceived with 
 the sole, or at least primary, purpose of promoting 
 the business prosperity of the city. And even from 
 these we may eliminate at this point those activities, 
 such as the furnishing or regulation of port and ter- 
 minal facilities, which have so important a bearing upon 
 the contact of the city with the outside routes and con- 
 nections of commerce. These activities present highly 
 interesting questions of policy and plan, but they in- 
 volve no general principles of law. 
 
 In what ways have American cities attempted to 
 
COMMERCE AND INDUSTRY 229 
 
 foster and develop their commercial and industrial 
 prosperity; and what principles of law, if any, have 
 been involved in those attempts? 
 
 Development of water power 
 
 Apart from supplying or contracting for the usual 
 public utilities, which have a more or less direct effect 
 on the commercial and industrial development of a city, 
 and apart from the matter of port and terminal facilities 
 just mentioned, American cities have seldom attempted 
 to embark in the direct ownership and operation of 
 enterprises specifically designed to promote commerce 
 and industry. Upon this subject, however, there is at 
 least one interesting case of record. In 1875 the legis- 
 lature of Wisconsin authorized the city of Eau Claire 
 to construct a dam in the Chippewa river within the 
 limits of the city and to lease and rent the water power 
 thus created for manufacturing purposes. The supreme 
 court of the state held this act void. ^ It was conceded 
 that the city could be authorized to improve the navi- 
 gation of the river, but this was not the purport of the 
 act. It was conceded also that the city could be em- 
 powered to own and operate a waterworks and to lease 
 any surplus water obtained in this connection ; but the 
 court held that this power to construct a waterworks, 
 which was also conferred by the act, was wholly separ- 
 able from the power to construct the dam. With little 
 or no discussion of the specific point, although a lengthy 
 opinion was written, the court did "not hesitate in 
 holding, what was not questioned at the bar, that, if the 
 
 1 Attorney General v. City of Eau Claire, 37 Wis. 400 (1875). 
 
230 CITY PROGRESS AND THE LAW 
 
 statute under consideration grants power to the city to 
 construct and maintain the dam, for the purpose of 
 leasing the water power for manufacturing purposes, 
 it is a power for a private and not a public use, and 
 cannot be upheld." 
 
 Immediately after the decision of this case, the legis- 
 lature amended the law in question so as to make the 
 power to construct the dam dependent on the power 
 to construct the waterworks and so as to limit the 
 power to lease water power to the excess not required 
 for the waterworks. An effort was made to have the 
 court declare this amendment colorable, but this was 
 without success.2 
 
 In a Texas case decided in 1893' the court was asked 
 to prevent the city of Austin from erecting a dam in 
 the Colorado river on the ground that the enterprise 
 was not for the pretended purpose of supplying the city 
 with water and electric light but was in fact a* Visionary 
 and chimerical" venture undertaken "to obtain water 
 power to sell or lease for speculative or commercial 
 purposes." Private capitalists, so the allegation ran, 
 had "refused to embark their means in so reckless a 
 venture," and the scheme was thereafter foisted upon 
 the city itself by certain persons who "conceived the 
 idea of making the said city of Austin a great and popu- 
 lous commercial and manufacturing center" as a result 
 of this public work. The court admitted that if the 
 charge were borne out "that the supply of water and 
 lights was a mere guise and pretense for constructing 
 the dam, and that its main purpose was to promote 
 
 * state V. City of Eau Claire, 40 Wis. 533 (1876). 
 ' City of Austin v. Nalle, 85 Tex. 520 (1893). 
 
COMMERCE AND INDUSTRY 231 
 
 manufacturing enterprises," then "a very different case'* 
 would be presented. But the court was of the opinion 
 that this charge had not been proved, but that, on the 
 contrary, the plans which were projected showed "that 
 the principal object was to supply the city with water 
 and lights," and that "the use of any excess of power 
 which might be developed was merely a probable and 
 contingent result." ^ 
 
 In 1885 the question was presented to the supreme 
 court of Illinois whether the city of Ottawa was com- 
 petent to issue bonds for the purpose of aiding in the 
 development of water power for the benefit of private 
 manufacturers.^ Relying especially upon the clause of 
 the state constitution which empowered the legislature 
 to authorize municipal taxes only for "corporate pur- 
 poses,"^ the court answered: 
 
 It may be, and probably is true, that the contemplated improve- 
 ment of the water-power on the Illinois and Fox Rivers in the city 
 of Ottawa, if it had been judiciously and properly carried out, might 
 have built up the city, and added greatly to its general growth, wel- 
 fare and prosperity; but the establishment of any kind of manu- 
 factures which employed capital and labor within the city might 
 have produced the same result, and yet the city would have no power 
 to impose taxes to raise money to be devoted to such purposes. 
 Whenever the tax is levied to aid in any private enterprise, it is pro- 
 hibited by the constitution, although the object may be one which 
 may add to the wealth and prosperity of the city. A municipal cor- 
 poration cannot incur a liability and levy and collect taxes on the 
 property of the citizens to aid in the development of mere private en- 
 terprises; but the corporation may become indebted, for corporate 
 
 * The court did not discuss in any detail whether the development of 
 water power was or was not a public purpose. 
 
 ^ Mather v. City of Ottawa, 114 111. 659 (1885). See also on the subject 
 of these bonds Ottawa v. Carey, 108 U. S. no (1882). 
 
 ^ Supra, 156. 
 
232 CITY PROGRESS AND THE LAW 
 
 purposes, where the purpose is one pertaining entirely to the inter- 
 est of the public. Then the corporation may properly act, and the 
 acts will be binding. 
 
 These few cases on the subject of municipal enter- 
 prise for the promotion of industry by developing water 
 power are of interest only as they indicate the hesitancy 
 of the courts to permit any extension of city functions 
 beyond the beaten and customary path of the usual 
 utilities. A number of cities now sell electric motive 
 power to private industries; but this service has crept 
 in, as it were, upon the trail of the recognized utility 
 of lighting. It would seem that arguments of much 
 greater force could be made for the furnishing by a city 
 of power derived from water, which would be merely the 
 improvement of a natural resource. It is significant, 
 moreover, that in recent years the movement has gained 
 tremendous headway for a preservation of water power 
 sites still in the hands of the government and even for 
 a reclamation of sites that have passed into private 
 hands, although the attempts at reclamation have 
 naturally encountered serious obstacles.^ 
 
 Advertising the city 
 
 The national government, in addition to the "regu- 
 lations" that it has imposed upon foreign and interstate 
 commerce, maintains a number of important services 
 in aid of commerce and industry. Most of the states 
 likewise maintain departments or bureaus which, pri- 
 marily for the purpose of attracting settlers, collect, 
 
 7 See for example, The Water Power Cases, 148 Wis. 124 (1912). See 
 also Laws of New York, 1915, ch. 349, by which a very broad grant of power 
 is made to the city of Oswego to develop water power. 
 
COMMERCE AND INDUSTRY 233 
 
 collate, and disseminate information concerning the 
 natural resources and the industrial and commercial 
 opportunities of the state. While it is not uncommon 
 to find that cities are empowered, especially under 
 general welfare clauses, to enact ordinances in the 
 interest of "trade, commerce and manufactures,"^ it is 
 simply a fact that few cities have in any organized and 
 purposeful way undertaken to advance these interests 
 generally by informational and propagandic methods. 
 Such activities have been left almost wholly to private 
 initiative through the medium of chambers of com- 
 merce, boards of trade, or other similar associations — 
 organizations which are now found even in communities 
 of almost negligible size and importance.^ 
 
 The city of Baltimore may be cited as an exception in 
 this regard. This city maintains a regular department 
 of government known as the ' 'municipal factory site com- 
 mission." The functions of this commission, as described 
 in an official publication of the city,^^ are as follows: 
 
 It is a public agency created for the purpose of promoting any 
 movement that has for its end the development or enlargement of 
 Baltimore's industrial activities. 
 
 It is a department of the city government; supported by the city 
 government. There are no charges, costs nor fees connected with 
 its work. 
 
 Any service performed by the department or any information 
 given by the department is absolutely free of any financial burden 
 to the person who seeks its aid or takes advantage of its co-operation. 
 
 * Supra, 32. 
 
 ^ In recent years a few cities have indeed capitalized certain strictly 
 government reforms for what has at least appeared to be general advertising 
 purposes; but publicity work of this kind, masquerading in missionary 
 guise, is manifestly in a somewhat different category. 
 
 ^° The Baltimore Book, 1914, p. 27. 
 
234 CITY PROGRESS AND THE LAW 
 
 If you want to know anything about the business possibilities of 
 Baltimore; if you want to get in touch with the city's financial in- 
 terests ; if you want to know what factory sites are in the market ; in 
 fact, if you want to know anything at all about any phase of the in- 
 dustrial affairs of the city or any of the problems incident thereto — 
 communicate with the municipal factory site commission, City Hall. 
 
 You will find it ready to give help in any particular or in any di- 
 rection whatsoever. 
 
 The commission is organized on a basis that puts it in touch with 
 all the different business interests in Baltimore. . . 
 
 The commission has a finely developed system under which a 
 wide range of factory sites is listed. Real estate dealers, as well as 
 prospective manufacturers, are constantly referring to the commis- 
 sion's list whenever they have inquiries for industrial property. 
 
 The city itself controls about one hundred and seventy acres of 
 waterfront territory with direct railroad connections. 
 
 The commission is in touch with a combination of magnificent 
 buildings which have been converted into "beehive industrial col- 
 onies." All of the most modern appliances, power and other manu- 
 facturing advantages are readily available on attractive terms. 
 These buildings are situated near the junction of two railroads. 
 
 The factory site commission will put anyone in touch with any 
 of the above propositions. 
 
 The legal status of this commission in Baltimore has 
 apparently not been questioned before 'the courts. 
 Indeed it may be said generally that the establishment 
 and maintenance of such a department is so wholly 
 unusual among American cities that there is no law 
 upon the subject. In view of the fact, however, that 
 both national and state governments operate similar 
 services, it is highly unlikely that the courts, if called 
 upon, would hold that the expenditure of municipal 
 funds for an activity of this kind was an expendi- 
 ture for other than a legitimate and useful public 
 purpose. 
 
COMMERCE AND INDUSTRY 235 
 
 Municipal exhibits at expositions 
 
 For many years it has been a common practice for 
 states to make appropriations for buildings and ex- 
 hibits at expositions, and frequently also municipalities 
 have been granted the power to make similar appro- 
 priations. However extravagantly and inappropriately 
 many of these appropriations have been actually spent, 
 they must doubtless be regarded as having been made 
 primarily for the purpose of advertising the resources 
 and business opportunities of the state or community. 
 The expenditure of public money for such purposes has 
 not often been contested; but in a few instances at- 
 tempts have been made to invoke the resistance of the 
 courts. Mention has already been made of the unsuc- 
 cessful effort to prevent the city of Philadelphia from 
 placing $50,000 at the disposal of the mayor for use in 
 entertaining visitors at the centennial exposition in 
 i876;ii but this case involved a question, of entertain- 
 ment rather than of exhibit. In both Kentucky and 
 California the courts were asked to declare void appro- 
 priations which were made by the state legislatures for 
 exhibits at the Columbian exposition held in Chicago 
 in 1893. Without hesitation the supreme courts in 
 these states declared that these were appropriations for 
 a public purpose. 12 
 
 In a Tennessee case, decided in 1896, an injunction 
 was asked for to restrain a county from expending 
 $25,000 that had been appropriated for an exhibit of 
 the county's resources at the Tennessee centennial ex- 
 
 ^^ Supra, 223. 
 
 "Norman v. Kentucky Board, 93 Ky. 537 (1892); Daggett v. Colgan, 
 92 Cal. 53 (1891). 
 
236 CITY PROGRESS AND THE LAW 
 
 position held in that year at Nashville. ^^ The state 
 constitution authorized the legislature to delegate the 
 taxing power to municipalities only for "corporate pur- 
 poses;** and it was alleged that this was not such a 
 purpose. The court answered : 
 
 To our minds it is entirely clear that an exhibition of the re- 
 sources of Shelby County at the approaching State Centennial Ex- 
 position is a county purpose. In view of the fact that the event to be 
 celebrated is one of no less note and importance than the birth of a 
 great state into the American Union, and of the further fact that the 
 exposition is reasonably expected to attract great and favorable at- 
 tention throughout the country, and be participated in and largely 
 attended by intelligent and enterprising citizens of numerous other 
 states, at least it is beyond plausible debate that such an exhibition 
 is well calculated to advance the material interests and promote the 
 general welfare of the people of the county making it. It will excite 
 industry, thrift, development, and worthy emulation in different ave- 
 nues of commerce, agriculture, manufacture, art, and education 
 within the county, thereby tending to the permanent betterment 
 and prosperity of her whole people. In short, it will encourage pro- 
 gress, and progress will insure increased intelligence, wealth, and 
 happiness for her people, individually and collectively. Undeniably, 
 that which promotes such an object and facilitates such a result in 
 any county, is, to that county, a county purpose in the truest sense. 
 
 It is a vain impeachment of the purpose to say that the exhibition 
 provided for is to be made beyond the territorial limits of the county, 
 and at the capital of the state, some two hundred miles away. That 
 it should be made in the county is not essential. 
 
 A similar question, involving an issue of county bonds 
 in the sum of $100,000 for an exhibit at the Trans- 
 Mississippi exposition held at Omaha in 1898 came 
 before the Nebraska supreme court in that year.^^ Said 
 the court: 
 
 ^' Shelby County v. Exposition Co., 96 Tenn. 653 (1896). 
 "State ex rel. Douglas County v. Cornell, 53 Neb. 556 (1898). 
 
COMMERCE AND INDUSTRY 237 
 
 In the light of the principles already stated, is the legislation, 
 under which the bonds in question were voted, illegal on the ground 
 that it authorized the imposing of burdens upon the public, by way 
 of taxation, in aid of a private enterprise, and not in furtherance of 
 an object which is public in its character? The answer must be in 
 the negative. The statute under review does not attempt, or pur- 
 port, to authorize the issuance, or donation, of the bonds to private 
 individuals, or the corporation under whose auspices the exposition 
 is to be held. Nor does the act contemplate that the money derived 
 from the sale of the bonds shall be devoted to promote the interest 
 of a few ; but the intention of the law was to enable any county avail- 
 ing itself of its provisions to raise the means with which to meet the 
 expenses of erecting a suitable building or buildings, and maintaining 
 the same, and an exhibit of the resources of the county at the Trans- 
 Mississippi and International Exposition to be held in the city of 
 Omaha in 1898. The proceeds of the bonds are to be disbursed, for 
 the purpose mentioned in the law, by Douglas county, through its 
 officers and agents. We cannot determine judicially that such an 
 object is purely private, and not public in its character. 
 
 Although the cases on this subject are not numerous, 
 they are all one way; and there are innumerable in- 
 stances in which expenditures of this character have 
 been made without contest before the courts. It may 
 be taken as settled, therefore, that the promotion of 
 commerce and industry, through the medium of muni- 
 cipal exhibits at expositions is a legitimate purpose for 
 which public money may be spent. 
 
 Financial aid to private enterprises 
 Many attempts have been made by the cities of this 
 country to further their growth and foster their indus- 
 trial and commercial prosperity by extending financial 
 aid to private enterprises. Usually these attempts have 
 been in the form of a subscription to the stock or bonds 
 of private corporations or a loaning the credit of the 
 
238 CITY PROGRESS AND THE LAW 
 
 city, either in money or in municipal bonds. Conceiv- 
 ably such action may be merely an investment of 
 public funds. But needless to say the mere fact that a 
 stock or bond subscription or a loan is sought from a 
 city is fair proof of the speculative character of the 
 enterprise involved; for private capital is notoriously 
 lynx-eyed for prospectively good investments. 
 
 Sometimes these attempts to extend financial aid 
 have been in the form of direct donations either of land, 
 municipal bonds, or money. When a city owns lands 
 which have not been acquired for any public purpose 
 and which the city has full power to alienate at will, it 
 may be that there is no legal way by which the city 
 can be prevented from conveying such lands for a pri- 
 vate enterprise. This point has probably never been 
 settled ; but the fact is that few cities own any lands of 
 this character. Ordinarily a city would have to pur- 
 chase the land that it sought to donate, and this action 
 would be manifestly equivalent to a donation of money 
 secured by taxation. 
 
 Now in spite of the fact that cities have no doubt 
 occasionally given financial assistance of the kind here 
 indicated without any contest having been made before 
 the courts, the law upon this subject is definitely settled 
 by numerous adjudications. In the first place, let it 
 be remarked, the courts have seldom drawn any dis- 
 tinction between a municipal subscription to the stock 
 or bonds of a corporation and an out and out dona- 
 tion. ^^ They have apparently recognized that when a 
 city becomes the purchaser of the securities of a private 
 
 ^^Such a distinction was applied in Whiting v. Sheboygan & Fond du 
 Lac Railroad Co., 25 Wis. 167 (1870). 
 
COMMERCE AND INDUSTRY 239 
 
 corporation, the taxing power must be exercised; and 
 the city must be fully prepared to lose the tcix funds 
 it has invested. In determining the question of the 
 power of a city it is, of course, impossible to await the 
 ultimate outcome of a private business venture when it 
 might perchance be demonstrated that the exercise of 
 the power of taxation was in fact but a temporary 
 expedient, the funds expended having been returned in 
 the form of dividends or of interest and principal. No 
 court has been more emphatic than the United States 
 Supreme Court in declaring that from the viewpoint of 
 the law it matters not whether the city makes a dona- 
 tion or purchases securities. ^^ The actual ownership of 
 property, whether in the form of securities or otherwise, 
 may not be applied as a test to determine the purposes 
 for which a city may levy taxes. 
 
 In the second place, the rule has been laid down that 
 a city may be authorized to give financial aid to a pri- 
 vate person or corporation only when the business of 
 such person or corporation is public in character. In- 
 deed, the general rule that taxes may be levied only for 
 a public purpose, which we have had more than one 
 occasion to mention, was first laid down in the cases 
 involving municipal aid to railway corporations. ^^ As 
 a result of innumerable statutes enacted in all parts 
 of the country during the early period of railway de- 
 velopment, a large number of these cases arose, and the 
 rule became firmly established that the railway business 
 was so affected with a public interest that taxes could 
 
 " Olcott V. Supervisors, 16 Wall. 678 (1872). 
 
 " McBain, Taxation for a Private Purpose, in Political Science Quarterly, 
 XXIX, p. 185. 
 
240 CITY PROGRESS AND THE LAW 
 
 be imposed for the purpose of assisting persons or cor- 
 porations engaged in such business. 
 
 The extension of municipal aid to railway corpora- 
 tions was manifestly for the purpose of promoting 
 commerce, however imperfectly this purpose may have 
 been realized in actual results; and the cases which 
 apply the public purpose rule in this connection abound 
 in eloquent discussions concerning the general pros- 
 perity of cities in its relation to these arteries of com- 
 merce, as well as in discussions of their public character 
 as established by the special privileges conferred and 
 the special obligations imposed upon them. As a 
 public policy, however, the promotion of commerce by 
 this means is largely a matter of historical interest. 
 The policy of giving direct financial assistance to rail- 
 ways has long since given way to the policy of imposing 
 restraints even upon their private financial operations. 
 There remains to be considered, however, the reverse 
 aspect of the rule — namely, that financial aid may not 
 be extended by a city to a person or corporation en- 
 gaged in private business. 
 
 In 1 87 1 the legislature of the state of Maine asked 
 the supreme court whether towns could be authorized 
 by law to assist "by gifts of money or loans of bonds** 
 individuals or corporations engaged in establishing or 
 carrying on manufactures of various kinds. Answering 
 this question in the negative, ^^ the court declared: 
 
 Capital naturally gravitates to the best investment. If a particu- 
 lar place or a special kind of manufacture promises large returns, the 
 capitalist will be little likely to hesitate in selecting the place and in 
 
 18 Opinion of Justices, 58 Me. 590 (1871). The question was also asked 
 whether towns could be authorized to go directly into the manufacturing 
 business. Supra, 197. 
 
COMMERCE AND INDUSTRY 241 
 
 determining upon the manufacture. But whatever is done, whether 
 by the individual or the corporation, it is done with the same hope 
 and expectation with which the farmer plows his fields and sows his 
 grain — the anticipated returns. 
 
 Now the individual or corporate manufacturing will in the outset 
 promise to be, and in the result will be, either a judicious and gainful 
 undertaking, or an injudicious and losing one. If the manufacturing 
 be gainful, there seems to be no public purpose to be accomplished by 
 assessing a tax on reluctant citizens and coercing its collection to 
 swell the gains of successful enterprise. If the business be a losing 
 one, it is not readily perceived what public or governmental purpose 
 is attained by taxing those who would have received no share of the 
 profits, to pay for the loss of an unprosperous manufacturer, whether 
 arising from folly, incapacity, or other cause. The tax-payer should 
 not be compelled to pay for the loss when he is denied a share of the 
 profit. 
 
 In accordance with the opinion thus given to the 
 legislature, the Maine court held void an act which 
 empowered a town to lend ten thousand dollars 
 to certain persons on condition that they should 
 move their saw-mill and box factory from its existing 
 location in another town.^^ So the United States Su- 
 preme Court, in what is perhaps the leading case 
 upon this subject, 20 held void an issue of bonds 
 which had actually been made by a city under a Kansas 
 law empowering any city of the second class ''to encour- 
 age the establishment of manufactories and such other 
 enterprises as may tend to develop and improve such 
 city, either by direct appropriation from the general 
 fund or by the issuance of bonds." Referring to the 
 railway aid cases, which it was admitted had been 
 
 *' Allen V. Inhabitants of Jay, 60 Me. 124 (1872). 
 
 2° Loan Association v. Topeka, 20 Wall. 655 (1874) ; reaffirmed in Parkers- 
 burg V. Brown, 106 U. S. 487 (1882). 
 
242 CITY PROGRESS AND THE LAW 
 
 followed by ' 'disastrous consequences, ' ' the court pointed 
 to the fact that they had gone no further than to hold 
 that financial assistance might be extended to persons 
 engaged in business of a public character. There was, 
 however, "no difficulty in holding" that the general 
 business of manufacturing was not of this character. 
 **If it be said," the court argued, "that a benefit results 
 to the local public of a town by establishing manu- 
 factories, the same may be said of any other business or 
 pursuit which employs capital or labor. • The merchant, 
 the mechanic, the innkeeper, the banker, the builder, 
 the steamboat owner are equally promoters of the 
 public good, and equally deserving the aid of the citi-. 
 zens by forced contributions. No line can be drawn in 
 favor of the manufacturer which would not open the 
 coffers of the public treasury to the importunities of 
 two-thirds of the business men of the town or city."^! 
 In several other cases, however, the Supreme Court 
 modified this decision to the extent of holding that 
 municipal bonds issued in aid of manufacturing enter- 
 prises were valid in the hands of bona fide purchasers 
 provided they appeared upon their face to have been 
 issued for a municipal purpose.^^ 
 
 In a New York case the court of appeals held void an 
 act which empowered a village to subscribe to the stock 
 of a company engaged in the improvement of a private 
 water privilege on the Delaware River for the purpose 
 of manufacturing lumber. ^^ The benefit of such a 
 business to the public, said the court, "is remote and 
 
 21 See also Cole v. La Grange 113 U. S. i (1884). 
 
 22 Hackett v. Ottawa, 99 U. S. 86 (1878); Ottawa v. National Bank, 105 
 U. S. 342 (1881); Ottawa v. Carey, 108 U. S. no (1882). 
 
 23 Weismer v. Village of Douglas, 64 N. Y. 91 (1876). 
 
COMMERCE AND INDUSTRY 243 
 
 consequential." No public use was authorized to be 
 made of the water power developed by the erection of 
 the dam in the river. There was no greater public use 
 or purpose in this business "than is found in the setting 
 on foot of any business or industry in a community by 
 private parties. Any such enterprise tends indirectly 
 to the benefit of every citizen by the increase of general 
 business activity, the greater facility of obtaining em- 
 ployment, the consequent increase of population, the 
 enhancement in value of real estate and its readier sale, 
 and the multiplication of conveniences. But these are 
 not the direct and immediate public uses and purposes 
 to which money taken by tax may be directed." 
 
 So in a Kansas case it was held that a city had not 
 been and could not be empowered to subscribe to the 
 stock of a company organized "for the purpose of carry- 
 ing on the business of mining gas, coal, oil, salt, and 
 other minerals." 24 Had the business been solely for the 
 purpose of supplying the utility of natural gas, perhaps 
 this action might have been sustained under the doc- 
 trine of the railway-aid cases; but "the main purpose 
 of the corporation" appeared to be "to produce minerals 
 for sale on the market for profit." This was a private 
 business venture for which cities were not organized. 
 
 Not even where extraordinary calamities fall upon 
 private business within a city may the municipality be 
 authorized to extend financial aid in the form of loans 
 or gifts to strictly private enterprises with a view to 
 reviving trade and commerce. In 1872 a devastating 
 fire swept the city of Boston, causing great loss of prop- 
 erty and a partial paralysis of normal industry. The 
 
 ^ City of Geneseo v. Natural Gas etc. Co., 55 Kan. 358 (1895). 
 
244 CITY PROGRESS AND THE LAW 
 
 legislature by statute authorized the city to issue bonds 
 to obtain a sum to be loaned to private persons for 
 assistance in rebuilding the burned district. Brought 
 to the bar of the state supreme court, this action was 
 declared void.^^ The court said : 
 
 There is no public use or public service declared in the statute 
 now under consideration, and we are of opinion that none can be 
 found in the purposes of its provisions. By its terms the proceeds of 
 the bonds, thereby authorized, are to be expended in loans to per- 
 sons who are or may become owners of land in Boston, "the buildings 
 upon which were burned by the fire in said Boston on the ninth and 
 tenth days of November," 1872. The ultimate end and object of 
 the expenditure, as indicated by the provisions of the statute itself, 
 is "to insure the speedy rebuilding on said land." 
 
 The general result may indeed be thus stated collectively, as a 
 single object of attainment; but the fund raised is intended to be 
 appropriated distributively, by separate loans to numerous indi- 
 viduals, each one of which will be independent of any relation to the 
 others, or to any general purpose, except that of aiding individual 
 enterprise in matters of private business. The property thus cre- 
 ated will remain exclusively private property, to be devoted to 
 private uses at the discretion of the owners of the land with no re- 
 striction as to the character of the buildings to be erected, or the 
 uses to which they shall be devoted; and with no obligation to 
 render any service or duty to the Commonwealth, or to the city — 
 except to repay the loan — or to the community at large or any part 
 of it. If it be assumed that the private interests of the owners will 
 lead them to re-establish warehouses, shops, manufactories, and 
 stores; and that the trade and business of the place will be enlarged 
 or revived by means of the facilities thus provided; still these are 
 considerations of private interest, and, if expressly declared to be the 
 aim and purpose of the act, they would not constitute a public 
 object, in a legal sense. 
 
 As a judicial question the case is not changed by the magnitude 
 of the calamity which has created the emergency; or the extent and 
 
 2' Lowell V. City of Boston, iii Mass. 454 (1873). 
 
COMMERCE AND INDUSTRY 245 
 
 importance of the interests to be promoted. These are considera- 
 tions affecting only the propriety and expediency of the expenditure 
 as a legislative question. If the expenditure is, in its nature, such as 
 will justify taxation under any state of circumstances, it belongs to 
 the Legislature exclusively to determine whether it shall be author- 
 ized in the particular case; and however slight the emergency, or 
 limited or unimportant the interests to be promoted thereby, the 
 court has no authority to revise the legislative action. 
 
 On the other hand, if its nature is such as not to justify taxation 
 in any and all cases in which the Legislature might see fit to give 
 authority therefor, no stress of circumstances affecting the expedi- 
 ency, importance or general desirableness of the measure, and no 
 concurrence of legislative and municipal action, or preponderance of 
 popular favor in any particular case, will supply the element neces- 
 sary to bring it within the scope of legislative power. 
 
 A similar attempt by the city of Charleston following 
 a ruinous fire in 1866, in which all the buildings in a 
 very large portion of the city were destroyed, was inter- 
 dicted by the highest court of South Carolina.^^ In 
 this case the fire loan bonds had actually been issued 
 by the city and many of them, without being questioned 
 as to their validity, had passed into the hands of inno- 
 cent purchasers. Indeed, it was about fourteen years 
 after their issuance that the court declared these bonds 
 void. The opinion recited: 
 
 The real object was to loan the credit of the city to private indi- 
 viduals to afford them aid in repairing their losses occasioned by a 
 disastrous fire. It was practically nothing more nor less than lend- 
 ing the credit and funds of the city to private individuals to aid them 
 in building on their own lots dwellings, stores, warehouses, or such 
 other structures as their interest or convenience might prompt, for 
 their own individual use, and to promote their own individual com- 
 fort or gain. There was nothing whatever in it of a public nature. 
 
 *• Feldman & Co. v. City Council of Charleston, 23 S. C. 57 (1884). 
 
246 CITY PROGRESS AND THE LAW 
 
 The public were not to have any interest in, or control over, the 
 structures which were thus to be erected by the aid of the public 
 funds, but they were for the sole use, and under the exclusive con- 
 trol, of the individual owners, precisely like any other private prop- 
 erty owned by any other private individual residing or owning prop- 
 erty in the city. 
 
 We cannot conceive how it is possible to invest the manifest pur- 
 pose of this loan on the part of the city with a public character. It 
 is true that there would be incidental advantages accruing to the 
 city by the increase of its taxable values, and in various other ways 
 that might be suggested, but these are mere incidental advantages 
 which attend any improvements made in a city, even where they 
 are exclusively the work of private individuals, made with their own 
 private funds, and cannot, therefore, have the effect of converting 
 the purpose from a private into a public purpose. 
 
 The legislation under review in this case was dis- 
 tinguished from the legislation authorizing aid to rail- 
 ways on the ground that railroads even though pri- 
 vately owned, were * 'public highways," were granted 
 the power of eminent domain, and as common car- 
 riers were required to operate under such regula- 
 tions as might be prescribed by the government. 
 None of these factors existed to render public in char- 
 acter the business of those whose property had been 
 destroyed by fire. 
 
 Of somewhat the same purport was a Kansas decision 
 which held void a law authorizing the issuance of town- 
 ship bonds, following a wide-spread failure of crops in 
 the state, **for the purpose of providing the citizens of 
 such townships with provisions and with grain for seed 
 and feed."" In this case the court was at pains to point 
 out that the act could not be sustained as a measure 
 
 27 State ex rel. Griffith v. Osawkee Township, 14 Kan. 418 (1875)- 
 
COMMERCE AND INDUSTRY 247 
 
 for the relief of the poor, which was conceded to be 
 "among the unquestioned objects of public duty." But 
 "the obligation of the state" in this regard "is limited to 
 those unable to help themselves." In this instance "it is 
 not the helpless and dependent, whose wants are alone 
 sought to be relieved." The act "contemplates a class 
 who have fields to till and stock to care for, and pur- 
 poses to help them with seed for their fields and grain 
 for their stock, that then they may pursue with better 
 prospects of success their ordinary avocations. It taxes 
 the whole community to assist one class, and that not 
 for the purpose of relieving actual want, but to assist 
 them in their regular occupations." This was further 
 evidenced by the fact that the statute provided that 
 assistance should be extended only through the medium 
 of loans, which loans were to be secured by mortgage 
 notes upon the real and personal property of the bor- 
 rowers. Surely such borrowers could not be regarded 
 as paupers. 
 
 Nor could the act be sustained as a measure to prevent 
 pauperism and destitution, although the argument on 
 this score was admitted to be strong. ' ' Let the doorways 
 of taxation be opened," said the court, "not merely to 
 the relief of present and actual distress, but in antici- 
 pation of and to guard against future want, and who 
 can declare the result? How certain must be the ex- 
 pectation of want? How nigh its approach? What 
 efforts must the individual make to ward it off? May 
 he do nothing, and demand that the public make pro- 
 vision to guard against the possibility of future suffer- 
 ing? Must wide-spread and general calamity precede 
 the granting of such anticipatory relief, or is it enough 
 
248 CITY PROGRESS AND THE LAW 
 
 that individual misfortune or indolence render probable 
 the approach of want?" The mere mention of these 
 questions, the court thought, was sufficient to suggest 
 "the dangers which would follow the adoption of this 
 as a rule of public conduct." 
 
 To many minds it may appear that the extension of 
 financial assistance to private industry by the govern- 
 ment of a city in time of serious calamity has in point 
 of fact quite as large elements of public purpose as has 
 the lending or giving of government aid to a railway or 
 other utility corporation. The risk of public funds is 
 certainly no greater in the one case than in the other. 
 Our national government has in times past practically 
 given away large portions of the public domain to en- 
 courage settlement and thereby to foster individual 
 economy; and there is surely no large difference be- 
 tween taxation itself and the alienation of a public 
 economic value that might some day produce revenue 
 in lieu of taxation. We have given ship subsidies for 
 the upbuilding of a merchant marine; and while as a 
 policy these subsidies have been widely debated, few 
 have been heard to contend that they were illegal on 
 the ground of their being for a non-public purpose. 
 The recent rural credits law carried with it an appropri- 
 ation of national funds for the establishment of banks 
 to make loans to farmers; and while these banks may 
 become self-sustaining, the funds so appropriated may, 
 on the contrary, be lost. The rule that taxes may not 
 be imposed for a private purpose has probably never 
 been applied to an act of Congress. Apparently, how- 
 ever, it is a general rule of our constitutional law; as 
 such it is just as appropriately applicable to a law of 
 
COMMERCE AND INDUSTRY 249 
 
 Congress as to the action of a city taken under due 
 authorization from the state. ^^ 
 
 But in the case of cities the courts have, so far as their 
 adjudications go, elected to assert that the financial aid 
 of the government may be extended only to those 
 businesses that are included within the commonly ac- 
 cepted meaning of the term public utility. ^^ Perhaps in 
 the long run, when the sometime prodigality and reck- 
 lessness of our quickly changing municipal adminis- 
 trations are considered, the restrictive hand of the 
 courts in this respect may be regarded as unqualifiedly 
 beneficent. It might have been even more beneficent if 
 the opening of public fiscs to the railways had also been 
 prevented at the period when that practice was in 
 vogue. From the viewpoint of the general public wel- 
 fare, however, it is not easy to see that the building of a 
 railway is of greater public benefit than the rebuilding 
 of a fire-ruined city or the rehabilitation of a farming 
 community struggling out of a wide-spread failure of 
 crops. That a railway must be granted the power of 
 eminent domain may be an argument in support of the 
 authority of the government to regulate; but, being in 
 itself a special public grant, this power is certainly a 
 small argument in support of authority to make an 
 additional public grant — a grant of public funds. That 
 the power to regulate the railway justifies this additional 
 grant may seem plausible ; but the fact is that railways 
 
 28 The courts have in fact never referred this rule to any specific pro- 
 vision of a state or the national constitution. McBain, Taxation for a 
 Private Purpose, in Political Science Quarterly, XXIX, p. 185. 
 
 ^ Logically, if called upon, the United States Supreme Court would be 
 compelled to sanction a municipal donation to the owners of grain elevators 
 {supra, 186); the Maine court, to the operators of fuel yards (supra, 196); 
 and the Georgia court, to manufacturers of ice (supra, I99). 
 
250 CITY PROGRESS AND THE LAW 
 
 were given public aid at a time when they were sub- 
 jected to an almost absurd minimum of public regula- 
 tion. In the development of governmental regulation 
 of railways in the United States the gifts of the govern- 
 ment to them or the purchase of their securities by the 
 government has exerted an entirely negligible influence. 
 It has already been pointed out as open to grave 
 question whether in its historical aspect the power of 
 the government to regulate business can properly be 
 ascribed to the modern distinction between public and 
 private business. ^^ If this distinction could be discarded 
 so far as the power of regulation is concerned, there 
 would be destroyed the only prop upon which has been 
 rested the competence of the government to lend 
 financial aid to private persons and corporations. In 
 view of the profits to private capital that have accrued 
 from public utility enterprises it is no longer conceiv- 
 able that cities would, except perhaps in some unusual 
 circumstance, come forward with direct financial assist- 
 ance. Moreover, except in small communities or in 
 time of public calamity, cities have abandoned the 
 notion of erecting their industrial and commercial pros- 
 perity upon the uncertain foundation of direct financial 
 aid to private enterprise. Whether this idea may for 
 one reason or another be revived at some future time, 
 remains to be seen. For the present both the law, as 
 it has been expounded, and the practice, as it has 
 evolved, stand inexorably in the way. 
 
 *° Supra, 179. 
 
TABLE OF CASES 
 
 AlbanyStreet, 7nre, II Wend. (N. Y.) 149 I33 
 
 Allen V. Inhabitants of Jay, 60 Me. 124 241 
 
 Andrews v. South Haven, 187 Mich. 294 56 
 
 Ardmore v. State ex rel., 24 Okla. 862 153 
 
 Atlantic City v. France, 75 N. J. L. 910 73 
 
 Attorney General v. Detroit, 150 Mich. 310 54 
 
 Attorney General v. Detroit, 164 Mich. 369 159 
 
 Attorney General v. Eau Claire, 37 Wis. 400 229 
 
 Attorney General v. Lindsay, 178 Mich. 524 159 
 
 Attorney General v. McGuinness, 78 N. J. L. 346 9 
 
 Attorney General v. Williams, 174 Mass. 476. 91, 94, 107, 142, 151 
 
 Attorney General v. Williams, 178 Mass. 330 94 
 
 Austin V. Coggeshall, 12 R. I. 329 222 
 
 Austin V. Nalle, 85 Tex. 520 230 
 
 Baltimore v. Clunet, 23 Md. 449 133 
 
 Barbierj;. Connolly, 113 U. S. 27 lOi 
 
 Barnes v. Hill, 23 Okla., 207 153 
 
 Bates V. Bassett, 60 Vt. 530 . . 212 
 
 Belle V. Platteville, 71 Wis. 139 213 
 
 Bennett v. Boyle, 40 Barb. (N. Y.) 551 133 
 
 Bill Posting Co. v. Atlantic City, 71 N. J. L. 72 77 
 
 Blanchard v. Benton, 109 III. App. 569 49 
 
 Bloomsburg Imp. Co. v. Bloomsburg, 215 Pa. St. 452 . . . 41, 211 
 
 Boerth v. Detroit City Gas Co., 152 Mich. 654 42 
 
 Bostock t;. Sams, 95 Md. 400 115 
 
 Boulat V. Municipality No. One, 5 La. Ann. 363 132 
 
 Bowers v. Indianapolis, (Ind.) 81 N. E. 1097 75 
 
 Bradley v. District of Columbia, 20 App. D. C. 169 .... 75 
 
 Brooklyn, In re, 143 N. Y. 596 170 
 
 Brooklyn v. Nassau El. R. R. Co., 44 N. Y. App. Div. 462. 71, 74, 75 
 Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234. 206, 207 
 
 Brooks V. Town of Brooklyn, 146 la. 136 214 
 
252 TABLE OF CASES 
 
 Bryan v. Chester, 212 Pa. St. 259 78 
 
 Budd V. New York, 143 U. S. 517 179, 185, 186 
 
 Byrne v. Maryland Realty Co., (Md.) 98 Atl. 547 115 
 
 Cary v. Blodgett, 10 Cal. App. 463 50 
 
 Champaign v, Harmon, 98 111. 491 150 
 
 Charles Riyer Bridge v. Warren Bridge, 11 Peters 420 ... 164 
 
 Chestnut Street, /« re, 118 Pa. St. 593 113 
 
 Chicago V. Gunning System, 214 111. 628 78, 84 
 
 Chicago t;. KnoJDel, 232 111. 112 74 
 
 Chicago V. Stratton, (111.) 44 N. E. 853 98 
 
 Chicago B. &, Q. R. Co. v. Chicago, 166 U. S. 226 125 
 
 Chicago B. & Q. R. Co. v. People ex rel., 200 U. S. 561 .... 62 
 Chicago Union Traction Co. v. Chicago, 199 111. 484 .... 43 
 
 Christensen v. Fremont, 45 Neb. 160 49 
 
 Churchill v. Collector of Int. Rev., 14 Off. Gazette of Philip- 
 pines, 283 89 
 
 City of, see name of city 
 
 Clark V. Nash, 198 U. S. 361 127 
 
 Clark t>. Los Angeles, 160 Cal. 30 50 
 
 Clarke v. Brookfield, 81 Mo. 503 213 
 
 Cleveland v. Railway Co,, 201 U. S. 529 42 
 
 Cochran z;. Preston, iq8 Md. 220 91,96,107 
 
 Coldwater v. Tucker, 36 Mich. 474 52 
 
 Cole t». La Grange, 113 U. S.I 242 
 
 Coleman v. Frame, 26 Okla. 193 153 
 
 Commissioners of Central Park, In re, 63 Barb. (N. Y.) 282. 206, 207 
 Commissionersof Washington Park, /w re, 52 N. Y. 131 . . 209 
 Commonwealth v. Boston Adv. Co., 188 Mass. 348 .... 77, 94 
 
 Commonwealth 2^., Wilder, 127 Mass. I 212 
 
 Converse v. Fort Scott, 92 U. S. 503 38 
 
 Cook i;. South Park Commissioners, 61 111. 115 209 
 
 Crawford v. Topeka, 51 Kan. 756 78, 79 
 
 Crawfordsville v. Braden, 130 Ind. 149 50, 51 
 
 Cream City Bill Posting Co. v. Milwaukee, 158 Wis. 86 . . 83 
 
 Cronin v. People, 82 N. Y. 318 98 
 
 Crouch V. McKinney, (Tex.) 104 S. W. 518 50 
 
 Currau Bill Posting etc. Co. v. Denver, 47 Col. 221 .... 80 
 
TABLE OF CASES 253 
 
 Curtis V. Los Angeles, (Cal.) 156 Pac. 462 100 
 
 Cusack Co. V. Chicago, (111.) 108 N. E. 340 ........ . 83 
 
 Cusack Co. V. Chicago, 242 U. S. 526 85, 113 
 
 Daggett V. Colgan, 92 Cal. 53 235 
 
 Davis V. Anita, 73 la. 325 40 
 
 Davis & Bro. v. Woolnough, 9 la. 104 25 
 
 Denver ir. Hallett, 34 Col. 393 . 217 
 
 Denver v. Rogers, 46 Col. 479 105 
 
 Department of Health of New York v. Ebling Brewing Co., 
 
 78 N. Y. Supp. II 72, 75 
 
 Detroit v. Railway Co., 184 U. S. 368 42 
 
 Detroit Citizens' Str. Ry. Co. v. Detroit, no Mich. 384 . . 42 
 Detroit Citizens' Str. Ry. Co. v. Detroit Ry., 171 U. S. 48. 42, 164 
 
 Dexheimer V. Orange, 60 N. J. L. in 9 
 
 Donable's Administrator v. Harrisonburg, 104 Va. 533 ... 54 
 Duke Bond v. Mayor etc. of Baltimore, 116 Md. 683 .... 139 
 
 Duncan v. Lynchburg, (Va.) 34 S. E. 964 54 
 
 Dunkinw. Blust, (Neb.) 119N. W. 8 40 
 
 Dunn V. Charleston, Harper's Law (S. C.) 189 132, 133 
 
 Dyer v. Newport, 123 Ky. 203 53 
 
 Elliott f. Detroit, 121 Mich. 611 28 
 
 Embury r. Connor, 3 N. Y. 511 133 
 
 Erie R. Co. v. Mayor etc. of Jersey City, (N. J.) 84 Atl. 697. 71, 73 
 
 Ellinwood v. Reedsburg, 91 Wis. 131 45 
 
 Eubank z;. Richmond, 226 U. S. 137 86, III 
 
 Ex parte, see name following 
 
 Farwell v. Seattle, 43 Wash. 141 53 
 
 Fawcett v. Mt. Airy, 134 N. C. 125 46, 50 
 
 Feldman & Co. v. Charleston, 23 S. C. 57 245 
 
 First Municipality of New Orleans v. McDonough, 2 Rob. 
 
 (La.) 244 150 
 
 First Municipality of New Orleans v. New Orleans Theatre 
 
 Co., 2 Rob. (La.) 209 219 
 
 Foster v. Boston Park Commissioners, 131 Mass. 225 .... 206 
 
 Foster v. Boston Park Commissioners, 133 Mass. 321 . . . . 206 
 
254 TABLE OF CASES 
 
 French v. Quincy, 3 Allen (Mass.) 9 212 
 
 Friend v. Gilbert, 108 Mass. 408 212 
 
 Fruth v. Board of Affairs, 75 W. Va. 456 in 
 
 Gamble v. Village of Watkins, 7 Hun (N. Y.) 44.8 222 
 
 Gelpke v. Dubuque, i Wall. 175 38 
 
 Geneseo v. Geneseo Natural Gas etc. Co., 55 Kan. 358 . . . 243 
 
 George v. School District of Mendon, 6 Met. (Mass.) 497 . . 212 
 
 Glucose Refining Co. v. Chicago, 138 Fed. 209 72 
 
 Greenbanks v. Boutwell, 43 Vt. 207 212 
 
 Greenville v. Greenville Water Works Co., 125 Ala. 625 . . 41 
 
 Groner v. Portsmouth, 77 Va. 488 33 
 
 Gunning System v. Buffalo, 75 N. Y. App. Div. 31 80 
 
 Hadacheck, Ex parte, 165 Cal. 416 102, 103 
 
 Hadacheck v. Sebastian, 239 U. S. 394 103, 105 
 
 Hadsell v. Hancock, 3 Gray (Mass.) 526 212 
 
 Haller Sign Works v. Training School, 249 111. 436 .... 78, 84 
 
 Hamilton Gas etc. Co. v. Hamilton, 146 U. S. 258 166 
 
 Harmon i;. Chicago, no 111. 400 72,75 
 
 Hackett v. Ottawa, 99 U. S. 86 242 
 
 Hayward v. Red Cliff, 20 Col. 33 150 
 
 Haywood v. Mayor etc. of Savannah, 12 Ga. 404 9 
 
 Heilbron v. Mayor etc. of Cuthbert, 96 Ga. 312 45 
 
 Helena Waterworks Co. v. Helena, 195 U. S. 383 166 
 
 Henderson w. Young, 119 Ky. 224 52 
 
 Hetherington v. Bissell, 10 la. 145 25 
 
 Higginson v. Inhabitants of Nahant, 93 Mass. 530 208 
 
 Hill V. Selectmen of Easthampton, 140 Mass. 381 225 
 
 Hill V. Memphis, 134 U. S. 198 39 
 
 Hodges t;. Buffalo, 2 Denio (N.Y.) no 222,224 
 
 Holt V. Somerville, 127 Mass. 408 206, 207 
 
 Holton V, Camilla, 134 Ga. 560 199 
 
 Hood V. Mayor etc. of Lynn, 83 Mass. 103 224 
 
 Horton v. Old Colony Bill Posting Co., (R. I.) 90 Atl. 822 . . 83 
 
 Howell V. Millville, 60 N. J. L. 95 48 
 
 Hudson Water Co. v. McCarter, 209 U. S. 349 95 
 
 Huesing v. Rock Island, 128 111. 465 48 
 
TABLE OF CASES 255 
 
 Hunnicutt v. Atlanta, 104 Ga. i 150 
 
 Hyatt V. Williams, 148 Cal. 585 • • 50 
 
 Illinois Trust etc. Bank v. Arkansas City, 76 Fed. 271 ... 42 
 
 Indianapolis v. Consumers Gas etc. Co., 140 Ind. 107 ... 42 
 
 Indianapolis v. Gas-Light & Coke Co., 66 Ind. 396 42 
 
 In re, see name following 
 
 Intendant etc. of Livingston v. Pippin, 31 Ala. 542 .... 36, 44 
 
 Interstate Commerce Com. v. Railway Co., 167 U. S. 479 . . 42 
 In the matter of, see name following 
 
 Jacksonville Electric Light Co. v. Jacksonville, 36 Fla. 229 . 50 
 
 Jones V. Inhabitants of Sanford, 66 Me. 585 212 
 
 Joplin V. Southwest Mo. Light Co., 191 U. S. 150 166 
 
 Kansas City Gunning Adv. Co. v. Kansas City, 240 Mo. 659 82 
 
 Keen v. Mayor etc. of Waycross, loi Ga. 588 56 
 
 Kelso, In re, 147 Cal. 609 103 
 
 Kerr v. South Park Commissioners, 117 U. S. 379 206 
 
 Kingman v. Brockton, 153 Mass. 255 212, 215 
 
 Knoxville Water Co. v. Knoxville, 200 U. S. 22 .... 165, 166 
 
 Ladd V. Jones, 61 111. App. 584 49 
 
 Laughlin v. Portland, 1 1 1 Me. 486 196 
 
 Libby v. Portland, 105 Me. 370 150 
 
 Little i;. Holyoke, 177 Mass. 114 '. 212 
 
 Loan Association v. Topeka, 20 Wall. 655 241 
 
 Lochner v. New York, 198 U. S. 45 183 
 
 Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 . 171 
 
 Lowell V. Boston, 1 1 1 Mass. 454 244 
 
 McBean v. Fresno, 112 Cal. 159 46 
 
 McCulloch V. Maryland, 4 Wheat. 316 33 
 
 Mcintosh V. Johnson, 211 N. Y. 265 98 
 
 Madera Waterworks v. Madera, 228 U. S. 454 166 
 
 Madison Traction Co. v. St. Bernard Mining Co., 196 U. S. 239 125 
 
 Mather t;. Ottawa, 114 111. 659 231 
 
 Matter of, see name following 
 
 Mauldin v. Greenville, 33 S. C. i 46, 49 
 
256 TABLE OF CASES 
 
 Mayor r. Ray, 19 Wall. 468 . 38 
 
 Mayor of, see name of city 
 
 Meyer v. Muscatine, i Wall. 384 37 
 
 Minturn v. Larue, 23 How. 435 36, 42 
 
 Mobile V. Yuille, 3 Ala. 137 182 
 
 Montgomery, In re, 163 Cal. 457 102 
 
 Moses V. United States, 16 App. D. C. 428 71, 75 
 
 Mt. Vernon First Nat'l Bank v. Sarlls, 129 Ind. 201 .... 97 
 
 Muncie Natural Gas Co. v. Muncie, 160 Ind. 97 42 
 
 Munn V. Illinois, 94 U. S. 113 178,186 
 
 New London v. Brainerd, 22 Conn. 552 224 
 
 New Shoreham v. Ball, 14 R. I. 566 150 
 
 New York v. Johns-Manville Co., 89 N. Y. App. Div. 449 . 74 
 
 Noblesville v. Gas & Improvement Co., 157 Ind. 162 .... 42 
 
 Norman v. Kentucky Board, 93 Ky. 537 235 
 
 Northwestern Laundry v. Des Moines, 239 U. S. 486 .... 75 
 
 Oklahoma City v. State, 28 Okla. 780 153 
 
 Olcott V. Supervisors, 16 Wall. 678 218, 239 
 
 Oliver v. Worcester, 102 Mass. 489 212 
 
 Olympia v. Man, i Wash. 389 97 
 
 Omaha Water Co. v. Omaha, 147 Fed. I 42 
 
 Opinion of Justices, 58 Me. 590 197, 240 
 
 Opinion of Justices, 150 Mass. 592 195 
 
 Opinion of Justices, "155 Mass. 598 195 
 
 Opinion of Justices, 182 Mass. 605 196 
 
 Opinion of Justices, 204 Mass. 607 140 
 
 Opinion of Justices, 204 Mass. 616 134, 140 
 
 Opinion of Justices, 211 Mass. 624 144 
 
 Opinion of Justices, (Vt.) 86 Atl. 307 28 
 
 Ottawa t'. Carey, 108 U. S. no 38,231,242 
 
 Ottawa V. National Bank, 105 U. S. 342 242 
 
 Owensboro v. Owensboro Waterworks Co., 191 U. S. 358 . . 43 
 Owners of Ground v. Mayor of Albany, 15 Wend. (N. Y.) 374 206 
 
 Palestine v. Siler, 225 111. 630 49 
 
 Paris V, Sturgeon, (Tex.) 1 10 S. W. 459 52 
 
 Parker v. Concord, 71 N. H. 468 212 
 
TABLE OF CASES 257 
 
 Parkersburg v. Brown, 106 U. S. 487 241 
 
 Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285 ... 78, 79 
 
 Patout Bros. v. Mayor etc. of New Iberia, (La.) 70 So. 616 . 99 
 Pennsylvania Mutual Life Ins. Co. v. Philadelphia, 242 Pa. 
 
 St. 47 ^ 138, 139 
 
 Pennsylvania Mutual Life Ins. Co. v. Philadelphia, 22 Pa. 
 
 Dist. 195 138 
 
 Pennsylvania R. Co. v. Mayor etc. of Jersey City, (N. J.) 
 
 87Atl. 465 73 
 
 People V. Brady, 26 N. Y. Misc. 82 93 
 
 People z;. Budd, 117 N. Y. I 179 
 
 People V. Calder, 89 N. Y. App. Div. 503 ......... iii 
 
 People V. Chicago, 51 111. 17 209 
 
 Peoples. Chicago, 261 111. 16 116 
 
 People V. Cooper, 83 III. 585 26 
 
 People V. Detroit etc. Co., (Mich.) 153 N. W. 799 74 
 
 People V. D'Oench, 1 1 1 N. Y. 359 93 
 
 People V. Ericsson, (III.) 105 N. E. 315 98 
 
 People V. Green, 85 N. Y. App. Div. 400 77 
 
 People V. Hastings, 207 N. Y. 763 80 
 
 People V. Horton, 41 N. Y. Misc. 309 68, 72 
 
 People V, Kennedy, 207 N. Y. 533 18 
 
 People V, Lewis, 86 Mich. 273 71 
 
 People V. Murphy, 195 N. Y. 126 78, 80 
 
 People V. Oak Park, (111.) 107 N. E. 636 98 
 
 People i;. Roberts, 153 N. Y. Supp. 143 117 
 
 People V. Salomon, 51 111. 37 209 
 
 People i;. Stroebel, 209 N. Y. 434 117 
 
 People V. Sturgis, 121 N. Y. App. Div. 407 71 
 
 Philadelphia tJ. Linnard, 97 Pa. St. 242 113 
 
 Pittsburgh v. Keech Co. 21 Pa. Sup. 548 73 
 
 Piatt V. San Francisco, 158 Cal. 74 161 
 
 Police Jury v. Britton, 15 Wall. 566 38 
 
 Porter v. Vinzant, 49 Fla. 213 40 
 
 Pritz, Ex parte, 9 la. 30 25 
 
 Qunitini v. Mayor etc. of Bay St. Louis, 64 Miss. 483 ... 118 
 
 Quong Wo, £x ^arte, 161 Cal. 220 loi 
 
258 TABLE OF CASES 
 
 Radford r. Clark, 113 Va. 199 54 
 
 Reinboth v. Pittsburgh, 41 Pa. St. 278 36 
 
 Reinman v. Little Rock, 237 U. S. 171 99i 105 
 
 Rochester v. West, 164 N. Y. 510 80 
 
 Rogers v. Burlington, 3 Wall. 654 38 
 
 Rome V. Cabot, 28 Ga. 50 45 
 
 Root's Case, 77 Pa. St. 276 209 
 
 Ross V. Long Branch, 73 N. J. L. 292 210 
 
 Russell, In re, 158 N. Y. Supp. 162 105 
 
 St. Louis V. Bell Tel. Co., 96 Mo. 623 42 
 
 St. Louis y. Dorr, 145 Mo. 466 114 
 
 St. Louis V. Heitzeberg etc. Co., 141 Mo. 375 70, 72, 73 
 
 St. Louis v. Hill, 116 Mo. 527 no 
 
 St. Louis r. Russell, 116 Mo. 248 98,113 
 
 St. Louis V. Griswold, 58 Mo. 175 206, 208 
 
 St. Louis V. Schoenbusch, 95 Mo. 618 40 
 
 St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99 ... . 80 
 
 St. Marys i;. Woods, 67 W. Va. no 28 
 
 St. Paul V, Gilfillan, 36 Minn. 298 72 
 
 St. Paul V. Haugbro, 93 Minn. 59 72 
 
 St. Paul V. Johnson, 69 Minn. 184 72 
 
 Salisbury Land & Imp. Co. v. Commonwealth, 215 Mass. 371 149 
 
 Savage, Ex parte, 63 Tex. 285 82 
 
 Savanna v. Robinson, 81 111. App. 471 39 
 
 Schmidinger r. Chicago, 226 U. S. 578 183 
 
 Schneider u. Menasha, 118 Wis. 298 52,53 
 
 Seybert v. Pittsburgh, i Wall. 272 36, 38 
 
 Shea r. Muncie, 148 Ind. 14 98 
 
 Shelby County v. Exposition Co., 96 Tenn. 653 236 
 
 Shoemaker v. United States, 147 U. S. 282 205 
 
 Sinclair v. District of Columbia, 20 App. D. C. 336 .... 75 
 
 Sing Lee, £x />or^e, 96 Cal. 354 113 
 
 Slaughter House Cases, 16 Wall. 36 188 
 
 Spaulding r. Lowell, 23 Pick. (Mass.) 71 I93» 212 
 
 Spaulding v. Peabody, 153 Mass. 129 49 
 
 State w. Barnes, 22 Okla. 191 153.217 
 
 State V. Cornell, 53 Neb. 556 . 236 
 
TABLE OF CASES 259 
 
 State V. Dllley, (Neb.) 145 N. W. 999 226 
 
 State V. Eau Claire, 40 Wis. 533 230 
 
 State V. Gurry, (Md.) 88 Atl. 546 106 
 
 State v. Houghton, (Minn.) 158 N. W. 1017 118, 121 
 
 State V, Hurley, 73 Conn. 536 113 
 
 State V. Indianapolis, Union Ry. Co., 160 Ind. 45 44 
 
 State V. Lamb, (N. J.) 98 Atl. 459 77, 78 
 
 State V. Lynch, 88 Oh. St. 71 220 
 
 State V. Merrill, 37 Me. 329 35 
 
 State V. Millar, 21 Okla. 448 153 
 
 State V. Osawkee Township, 14 Kan. 418 246 
 
 State V. Staples, 157 N. C. 637 82 
 
 State V. Thompson, 149 Wis. 488 28 
 
 State V. Tower, 185 Mo. 79 . . . '. 72, 73 
 
 State V. Whitlock, 149 N. C. 542 78, 79 
 
 State v. Withnell, 78 Neb. 33 113 
 
 State V. Withnell, 91 Neb. loi 104 
 
 Stetson V. Kempton, 1.3 Mass. 272 212 
 
 Stokes V. New York, 14 Wend. (N. Y.) 87 40 
 
 Stubbs t;. Scott, (Md.) 95 Atl. 1060 115 
 
 Sun Printing etc. Asso. v. Mayor etc. of New York, 152 
 
 N. Y. 257 167 
 
 Sylvester Coal Co. v. St. Louis, 130 Mo. 323 40 
 
 Tash V. Adams, 64 Mass. 252 224 
 
 Tatham v. Philadelphia, 1 1 Phila. 276 223 
 
 Taylor Cleveland & Co. v. Pine Bluff, 34 Ark. 603 39 
 
 Thompson-Houston Electric Co. v. Newton, 42 Fed. 723 . . 50 
 
 Tindley v. Salem, 137 Mass. 171 212 
 
 Torrent f. Muskegon, 47 Mich. 115 40 
 
 Union Ice & Coal Co. v. Ruston, (La.) 66 So. 262 200 
 
 Varney & Green r. Williams, 155 Cal. 318 78 
 
 Vaughn v. Village of Greencastle, 104 Mo. App. 206 .... 41 
 
 Vicksburg v. Vicksburg Waterworks Co., 202 U. S. 453 . . . 166 
 
 Vidal t;. Girard's Executors, 2 How. 127 34 
 
 Village of, see name of Village 
 
 Von Phul V. Hammer, 29 la. 222 25 
 
26o TABLE OF CASES 
 
 Walker t;. Cincinnati, 21 Oh. St. 14 52 
 
 Water Power Cases, 148 Wis. 124 232 
 
 Water Supply of New York, In re, 211 N. Y. 174 172 
 
 Waterworks Co. v. Webb City, 78 Mo. App. 422 41 
 
 Weismer v. Village of Douglas, 64 N. Y. 91 242 
 
 Welch V. Swasey, 193 Mass. 364 94, 95, 108 
 
 Welch V. Swasey, 214 U. S. 91 95, 108 
 
 Wells V. Mayor etc. of Atlanta, 43 Ga. 67 45 
 
 Western Paving etc. Co. v. Railroad Co., 128 Ind. 525 ... 42 
 
 Wheelock v. Lowell, 196 Mass. 220 215 
 
 Whiting V. Sheboygan etc. Rd. Co., 25 Wis. 167 238 
 
 White V. Stamford, 37 Conn. 578 214 
 
 Whitmier r. Buffalo, 118 Fed. 773 80 
 
 Willison i;. Cooke, (Col.) 130 Pac. 828 117 
 
 Wilshire, In re, 103 Fed. 620 82 
 
 Worden v. New Bedford, 131 Mass. 23 212 
 
 Yazoo City v. Lightcap, 82 Miss. 148 26 
 
 Zanesville v. Gas-Light Co., 47 Oh. St. i 42 
 
INDEX 
 
 Abattoirs, denial of implied power 
 to maintain, 48 
 
 Advertising the city, 232-234 
 
 Esthetics, not a ground for prohi- 
 bition of billboards, 77-79, 82, 
 84, 85; contrary view by Philip- 
 pine supreme court, 89; proba- 
 bility of inclusion among police 
 power subjects, 90, 91; not a 
 ground for limiting building 
 heights, 94-96 ; not a ground for 
 establishing building lines, iii- 
 113; not a ground for establish- 
 ing residence districts, 1 15-123; 
 excess condemnation for, 137, 
 139, 142, 143, 151 
 
 Assessments, special, recoupment 
 by means of, 149; for park pur- 
 poses, 206, 207 
 
 Auditoriums, power of city to 
 establish, 21 1-22 1 
 
 Austin, Tex., water power in, 230 
 
 Bakers, regulation of, 175, 178, 
 182, 183 
 
 Baltimore, regulation of building 
 heights in, 96, 107; regulation of 
 building in, 114, 115; excess 
 condemnation in, 139, 140; fac- 
 tory site commission in, 233, 
 
 234 
 
 Band concerts, power of city to 
 furnish, 221-226 
 
 Bay St. Louis, Miss., residence dis- 
 trict in, 118 
 
 Beer, regulation of price of, 176 
 
 Billboards, may not be prohibited 
 on aesthetic grounds, 77-79, 
 82, 84, 85; contrary rule in 
 Philippines, 89, 90; may be reg- 
 ulated for public safety, health, 
 peace, morals, 79-87; may be 
 excluded from residence dis- 
 tricts, 83-87, 109; consent of 
 adjacent property owners may 
 be required for, 86; compared 
 with noxious establishments, 87; 
 projection value theory of, 
 88, 90 
 
 Boston, charter of, 13; regulation 
 of building heights in, 94, 95, 
 107, 108; excess condemnation 
 in, 140; fire in, 243 
 
 Bread, regulation of price of, 175, 
 182, 183 
 
 Brick yard, exclusion of, from resi- 
 dence districts, 102-105 
 
 Brooklyn, building line In, iii; 
 authorized to acquire land rem- 
 nants, 132; condemnation of 
 waterworks in, 170-172 
 
 Buffalo, municipal entertainment 
 in, 222 
 
 Building heights, 92-96; zones 
 for, 106-109 
 
 Building lines, establishment of, 
 in zones, 1 09-1 14 
 
 Business, relation of government 
 to, 176-183; public and private, 
 distinguished, 178-202, 250 
 
 Cabmen, regulation of, 178, 184 
 
262 
 
 INDEX 
 
 Calamity, public, power of city to 
 aid private persons in time of, 
 244-250 
 
 Casino, erection of, in park, 210 
 
 Celebrations, power of city to fur- 
 nish, 221-225 
 
 Charleston, S. C, fire in, 245 
 
 Charter, municipal, character of 
 early, 2 ; change in character of, 
 2, 3; size of New York City, 3; 
 power of making, necessary for 
 home rule, 5, 6; alteration of, by 
 corporate authorities, 9-14; and 
 ordinances, distinction between, 
 II, 12, 19-22; of New York, 12, 
 22,23; of Boston, 13; reference 
 of, to voters, 14-19; is not a 
 contract, 16, 17; construction 
 of powers granted by, 29-57, 
 71,72 
 
 Chicago, subways in, 47; regula- 
 tion of billboards in, 83-87; 
 establishment of residence dis- 
 trict in, 115, 116 
 
 City planning, questions of law 
 involved in, 92-152 
 
 Coal business, see Fuel business 
 
 Combinations in restraint of trade, 
 174, 186, 187, 198 
 
 Commerce and industry, promo- 
 tion of, by development of water 
 power, 229-232 ; by advertising, 
 232-234; by giving financial 
 aid to private enterprise, 237- 
 250 
 
 Common carriers, regulation of, 
 178, 180 
 
 Competition, between city and 
 utility company, 164-170; un- 
 fair methods of, 174; modern 
 regulation of, 177 
 
 Concerts, power of city to furnish, 
 221-226 
 
 Congress, construction of powers 
 of, compared with construction 
 of municipal powers, 31-33, 57; 
 has no general police power, 58 ; 
 power over commerce, 174, 191, 
 232 ; application of rule of pub- 
 lic purpose to act of, 248 
 
 Construction of municipal powers, 
 28-57; rule of strict, 29, 30; 
 compared with construction of 
 powers of Congress, 31-33; lib- 
 erality of, in early cases, 34-36; 
 in respect to nuisances, 71, 72 
 
 Contract, rate regulation by, 42, 
 43; implied power of cities to 
 supply utility service by, 41-43; 
 freedom of, 179; see also Fran- 
 chises 
 
 Convention hall, see Public halls 
 
 Corporate purpose, see Municipal 
 purpose 
 
 Cost of living, see Living costs 
 
 Crime, relation of recreation to, 
 204 
 
 Dances, municipal, 226 
 
 Debts, municipal, exclusion of 
 utility debts from limitations 
 on, 157, 158; for utilities se- 
 cured only against utility prop- 
 erties, 159, 160; referenda on, 
 161 
 
 Delegation, of legislative power, 
 7-29; of ordinance-making pow- 
 er, 8, 9; to corporate authori- 
 ties of power to alter charters, 
 9-14 
 
 Delinquency, juvenile, relation of 
 recreation to, 204 
 
INDEX 
 
 263 
 
 Denver, residence district in, 116, 
 117; auditorium in, 216, 217 
 
 Detroit, home rule statute applica- 
 ble to, declared void, 27 
 
 Dillon, on rules of construction, 
 30,57 
 
 Districts, see Zones 
 
 Draymen, regulation of, 189 
 
 Due process of law, and the police 
 power, 63, 64; and the rule of 
 public use, 125, 128; and price- 
 fixing, 192 
 
 Easements, condemnation of, in 
 lieu of excess condemnation, 
 
 151 
 
 Eau Claire, Wis., water power in, 
 229, 230 
 
 Economic subjects of the police 
 power, 61, 121, 122 
 
 Education, relation of recreation 
 to, 203 
 
 Electric fixtures, implied power of 
 city to furnish, 56 
 
 Electric plant, implied power to 
 establish, 45-48; implied power 
 to expand into commercial field, 
 49-51; competition in, 168; 
 see also Public utilities 
 
 Elevators, grain, regulation of, 
 186, 187 
 
 Eminent domain, implied power 
 under, 54; distinguished from 
 police power, 65-67, 119; excess 
 condemnation under, 123-152; 
 only for public use, 124, 127; 
 acquisition of public utilities 
 under, 170-172; acquisition of 
 parks under, 205-211; as a test 
 of public character of a busi- 
 ness, 246 
 
 Entertainments, power of city to 
 
 furnish, 221-225 
 
 Equal protection of the laws, and 
 the police power, 63, 64 
 
 Excess condemnation, as a part of 
 city planning, 92 ; definition of, 
 124; under the rule of public 
 use, 125; by constitution or 
 statute, 127-129; of land rem- 
 nants, 129-136; for the protec- 
 tion of improvements, 136-146; 
 for undefined purposes, 146- 
 149; for financial profit, 149- 
 151; alternatives to, 151, 152 
 
 Exhibits, municipal, at exposi- 
 tions, 235-237 
 
 Exposition, centennial, 223; mu- 
 nicipal exhibits at, 235-237; 
 Columbian, 235; Tennessee cen- 
 tennial, 235 ; Trans- Mississippi, 
 236 
 
 Exterritorial powers of cities, by 
 implication, 51-53 
 
 Factories, exclusion of, from resi- 
 dence districts, 100-106, 118 
 Fee, distinguished from price, 154 
 Ferries, regulation of, 178, 181 
 Fire departments, a public utility 
 
 in Oklahoma, 153 
 Fourth of July, power of cities to 
 
 celebrate, 224, 225 
 Franchises, no implied power to 
 grant exclusive, 42 ; purchase of, 
 in one city by another city, 52, 
 53; obstruct municipal owner- 
 ship, 162; exclusive, 164-167; 
 strict construction of exclusive, 
 164-167; provisions for munici- 
 pal ownership in modern, 169, 
 170; value of, in condemna- 
 tion, 172 
 
264 
 
 INDEX 
 
 Freemen, admission of, by city, 
 
 175 
 Fuel business, power of city to 
 enter, 194-199 
 
 Garages, public, exclusion of, from 
 residence districts, 98, 117 
 
 General welfare, see Police power 
 
 General welfare clauses of munici- 
 pal charters, 32, 33, 40 
 
 Guthrie, Okla., convention hall in, 
 217 
 
 Halls, see Public halls 
 
 Health, public, a police power sub- 
 ject, 59, 60; regulation of bill- 
 boards for protection of, 81, 84; 
 limitation of building heights 
 for protection of, 95; noxious 
 industry zones for protection of, 
 100; relation of industrial zones 
 to, 101-106; relation of build- 
 ing line to, 11 i-i 13; relation of 
 residence district to, 1 1 6-1 18, 
 120; excess condemnation for 
 promotion of, 137, 139, 142- 
 145, 151; relation of recreation 
 to, 203 
 
 Heights of buildings, regulation of, 
 92-96; regulation of, by zones, 
 106-109 
 
 Home rule, municipal, chief argu- 
 ment for, 2-4; capacity of city 
 for, 3, 4; by constitutional 
 grant, 4; legal difficulties arising 
 out of constitutional grant of, 
 5; by legislative grant, 6-29; 
 under New York statute of 1913, 
 constitutionality of, 9, 10; in 
 Michigan and Texas, 21; mu- 
 nicipal ownership under, 161; 
 see also Self-government 
 
 Housing conditions, zoning for 
 improvement of, 120; excess 
 condemnation for improvement 
 of, 144, 145 
 
 Ice business, power of city to en- 
 ter, 199-201 
 
 Increment, unearned, excess con- 
 demnation for intercepting, 149- 
 151 
 
 Industrial districts, 100-106, 118 
 
 Industry, see Commerce and in- 
 dustry 
 
 Initiative and referendum, for 
 local charter-making, 20; see 
 also Referendum 
 
 Innkeepers, regulation of, 178, 
 181, 189 
 
 Interest, regulation of rate of. 
 190 
 
 Knoxville, waterworks in, 165 
 
 Laissez faire, doctrine of, 177 
 
 Laundries, public, regulation of, 
 loi; exclusion of, from resi- 
 dence districts, loi, 102 
 
 Legislative power, non-delegation 
 of, 7-29 
 
 Licenses, element of monopoly in, 
 188 
 
 Liquors, regulation of price of, 176 
 
 Little Rock, regulation of livery 
 stables in, 98, 99 
 
 Livery stables, exclusion of from 
 designated districts, 98-100, 105 
 
 Living costs, ways in which city 
 may control, 174; control by 
 regulation of prices, 175-192; 
 by municipal trade, 193-202 
 
 Local self-government, see Home 
 rule, Self-government 
 
INDEX 
 
 265 
 
 Long Branch, N. J., casino in, 210 
 
 Loose construction, see Construc- 
 tion of municipal powers 
 
 Los Angeles, regulation of livery 
 stables in, 99; industrial zones 
 in, 100-105, 107 
 
 Lumber yard, exclusion of, from 
 residence districts, 102 
 
 Manufacturing business, city may 
 not enter, 197, 240, 241; mu- 
 nicipal development of water 
 power for, 229-232; municipal 
 aid to, 240-243; see also Fac- 
 tories 
 Markets, an early municipal func- 
 tion, 174, 192, 193; foodstuffs 
 could be sold only at, 176; re- 
 cent interest in, 193, 201 
 Meat, regulation of price of, 175 
 Memorial hall, see Public halls 
 Millers, regulation of, 178, 189 
 Minneapolis, residence district in, 
 
 118, 119 
 Monopoly, in public utilities, 154, 
 168; creation of, by city, 175; 
 in medieval times, 176; as 
 basis for, public character of 
 a business, 180, 184-188; nat- 
 ural, 184, 185; of fact, 185-187, 
 198,201; legal, 187, 188; power 
 of government to create, 188; 
 see also Combinations in restraint 
 of trade, Competition 
 Morals, public, a police power sub- 
 ject, 59, 60; billboard restric- 
 tions for protection of, 79, 81, 
 84; commercial amusements 
 and, 225, 226 
 Motion picture theater, municipal, 
 220 
 
 Municipal ownership of public 
 utilities, implied power of, 44- 
 48, 162; implied power to ex- 
 pand into commercial service, 
 48-51; under constitutional 
 sanction, 1 57-1 61; under statu- 
 tory sanction, 1 61-170; by 
 exercise of eminent domain, 170; 
 slow movement toward, 199; 
 see also Municipal trade, Public 
 utilities 
 
 Municipal purpose, a local public 
 purpose, 156; public utilities are 
 a, 156, 157 
 
 Municipal trade, 174, 193-202 
 
 Nashville, exposition at, 236 
 
 Natural resources, protection of, 
 under police power, 61; devel- 
 opment of, by city, 229-232; 
 power of city to aid in develop- 
 ment of, 242, 243 
 
 Necessary and proper clause, of 
 National constitution, 31-33; 
 of municipal charters, 32, 33 
 
 New Haven, home rule statute for, 
 27 
 
 New Orleans, excepted from home 
 rule statute, 26; subscription 
 to stock of theater company, 
 219 
 
 Newport, R. L, municipal enter- 
 tainment in, 222 
 
 New York City, charter of, 12, 
 22, 23; smoke nuisance ordi- 
 nance, 72; regulation of height 
 of buildings in, 92, 93; early ex- 
 clusion of noxious industries in, 
 97 ; authorized to condemn land 
 remnants, 133; subways in, 
 167, 168; early regulation of 
 
266 
 
 INDEX 
 
 prices of comestibles in, 175, 
 176; early markets in, 192, 193; 
 Central Park in, 205 
 Niagara Falls, exclusion of fac- 
 tories from residence districts in, 
 
 105 
 Norfolk, Va., charter of, 24 
 Nuisances, private, 69, 70, 87; 
 
 public, 70, 87; per se, 70-72; 
 
 effect of abating private, 97 
 
 Omaha, exposition at, 236; pro- 
 hibition of brick kilns in, 104 
 
 Opera houses, power of city to es- 
 tablish, 2 I 1-22 I 
 
 Optional city government law of 
 New York, constitutionality 
 of, 10 
 
 Ordinances, delegation of power 
 to make, 8, 9; and charter, dis- 
 tinction between, II, 12, 19-22 
 
 Ottawa, 111., water power in, 231, 
 232 
 
 Parks, a public utility In Okla- 
 homa, 153; kinds of, 204, 205; 
 are for a public use, 205-211; 
 special facilities for recreation 
 in, 209, 210 
 
 Peace, public, a police power sub- 
 ject, 59, 60 
 
 Philadelphia, implied power of, to 
 accept a trust, 34, 35; author- 
 ized to condemn land remnants, 
 133; excess condemnation in, 
 138, 139; municipal entertain- 
 ment in, 223 
 
 Philippines, regulation of bill- 
 boards in, 89, 90 
 
 Playgrounds, 204, 209 
 
 Plumbing business, implied power 
 of city to maintain, 56 
 
 Police power, explanation of, 58, 
 59; common subjects of, 59-63, 
 121, 122; distinguished from 
 powers of taxation and eminent 
 domain, 65-67, 119; delegation 
 of parts of, to cities, 67; smoke 
 nuisance may be regulated un- 
 der, 72-76; billboards may be 
 regulated or prohibited under, 
 76-91 ; height of buildings may 
 be regulated under, 92-96; es- 
 tablishment of zones under, 96- 
 123; establishment of monopoly 
 under, 188 
 Port facilities, 174, 201, 228 
 Portland, Ore., charter of, 23 
 Prices, distinguished from fees, 
 154; municipal regulation of, 
 174-192; see also Rates 
 Private business, may not be regu- 
 lated as to price and service, 
 1 78-1 92 ; power of city to enter, 
 192-202; municipal aid to, 
 237-250 
 Projection value, theory of, 88, 90 
 Property, consent of owners of, a 
 valid requirement under police 
 power, 84-86, 113; protection of 
 value of, as a subject of police 
 power, 89, 95, 104, 106, 114, 
 115, 117, 118, 1 19-123; impair- 
 ment of value of, under police 
 power, 103, 104; owners of, 
 may not be empowered to im- 
 pose police restrictions, 112, 113; 
 condemnation of excess, 123- 
 152; protection of value of, by 
 excess condemnation, 142, 145, 
 146; power of city to buy and 
 sell, 150; alienation of munici- 
 pal, 238 
 
INDEX 
 
 267 
 
 Protection of public improve- 
 ments, 130, 136-146; see also 
 Excess condemnation 
 
 Public business, subject to regula- 
 tion, 178-192; power of city to 
 enter, 192-202; municipal aid 
 to, 239, 240, 242 
 
 Public domain, alienation of, 248 
 
 Public halls, a public utility in 
 Oklahoma, 153; power of cities 
 and towns to establish, 21 1-22 1 
 
 Public purpose, rule of, in taxa- 
 tion, 124, 125-193, 198, 231, 240, 
 247; includes municipal pur- 
 pose, 156, 157; never applied to 
 act of Congress, 248 
 
 Public use, rule of, in eminent do- 
 main, 124-127; is a requirement 
 of due process of law, 125, 128; 
 as applied to condemnation of 
 excess land remnants, 134-136; 
 as applied to park lands, 205-21 1 
 
 Public utilities, implied power of 
 cities in respect to, 41-57; regu- 
 lation of rates of, under police 
 power, 61; definition of, 153- 
 156; municipal ownership of, 
 1 56-173* 199; are public busi- 
 nesses, 184; legal monopoly in, 
 187, 188; municipal aid to, 249 
 
 Railways, municipal aid to, 37-39, 
 240, 246, 248, 249; prevention 
 of smoke nuisance by, 73; see 
 also Public utilities, Street rail- 
 ways 
 
 Rates, public utility, distinction 
 between power to contract for 
 and power to legislate for, 42, 
 43; regulation of interest, 190; 
 see also Prices 
 
 Real estate, power of city to buy 
 and sell for profit, 150; see also 
 Property 
 Recoupment, excess condemnation 
 for, 149; special assessments for, 
 149. 151 
 Recreation, municipal, relation of 
 to functions of government, 
 203, 264; parks for, 204; public 
 halls, auditoriums, opera houses, 
 theaters for, 21 1-22 1; enter- 
 tainments, celebrations, con- 
 certs for, 221-225; municipal 
 vs. commercialized, 225, 226 
 Referendum, on municipal char- 
 ters, 14-29; on debts for utili- 
 ties, 160; on all municipal debts, 
 160; see also Initiative and 
 referendum 
 Remnants of land, condemnation 
 
 of excess, 129-136, 145, 151 
 Repeal of charter provisions by 
 
 ordinance, 9-14 
 Replotting, excess condemnation 
 
 for, 129, 130, 145, 147, 151 
 Residence districts, exclusion of 
 billboards from, 83-87; exclu- 
 sion of noxious industries from, 
 96-100; exclusion of all indus- 
 tries from, 100-106; exclusion 
 of all business from, 1 14-123; 
 see also Zones 
 Restrictions on excess property, 
 
 131, 146-149 
 Richmond, Va., charter of, 24; 
 
 building line in, 11 1 
 Rock quarry, implied power to 
 
 acquire, 53-55 
 Rural credits law, 248 
 
 Safety, public, a police power sub- 
 ject, 59; billboard restrictions 
 
268 
 
 INDEX 
 
 for protection of, 79-81, 84-86; 
 limitation of building heights 
 for protection of, 95, 96, 120; 
 fire zones for, 97 ; relation of in- 
 dustrial zones to, 101-106; re- 
 lation of building lines to, iii- 
 113; relation of residence dis- 
 tricts to, 1 1 5-1 1 8, 120 
 
 St. Louis, regulation of billboards 
 in, 80-82; building lines in, no; 
 residence street in, 114; Forrest 
 Parkin, 208,209' 
 
 Saloons, exclusion of from resi- 
 dence districts, 98 
 
 San Francisco, opera house In, 
 218 
 
 Self-government, local, capacity of 
 city for, 3, 4; involves grant of 
 charter-making power, 5; see 
 also Home rule 
 
 Sewers, implied power to con- 
 struct, 46; Implied power to 
 carry beyond city limits, 52; a 
 public utility in Oklahoma, 153 
 
 Ship subsidies, 248 
 
 Sky-signs, 80 
 
 Slaughterhouses, exclusion of, 
 from designated districts, 98; 
 establishment of monopoly in, 
 1 88 ; see also A baUoirs 
 
 Smoke nuisance, problem of, 68, 
 70, 71 ; may be regulated under 
 police power, 72-76; relation of, 
 to industrial zones, 105 
 
 Social centers, 225, 226 
 
 Special assessments, see Assess- 
 ments 
 
 Street railways. Implied power to 
 construct subways, 47; compe- 
 tition In, 169; see also Public 
 utilities 
 
 Strict construction, rule of, see 
 Construction of municipal powers 
 
 Subways, in Chicago, 47; in New 
 York, 167, 168 
 
 Sunday observance laws, 60 
 
 Supplies, implied power of city to 
 manufacture, 55 
 
 Taxation, distinguished from 
 police power, 65; only for a 
 public purpose, 125, 193, 198, 
 231, 240, 247; chief source of 
 municipal revenue, 158, 160, 
 193; exemption of municipally 
 owned utilities from, 173; see 
 also Assessments 
 
 Terminal facilities, 174, 201, 228 
 
 Theaters, power of city to estab- 
 lish, 21 1-22 I 
 
 Toledo, motion picture theater in, 
 220 
 
 Town halls, see Public halls 
 
 Unearned Increment, excess con- 
 demnation for intercepting, 149- 
 
 151 
 Utica, residence district In, 117 
 
 Waterbury, Conn., home rule in, 
 27 
 
 Water power, power of city to de- 
 velop, 229-232 ; power of city to 
 aid private company to develop, 
 242, 243; see also Natural re- 
 sources 
 
 Water supply, implied power to 
 furnish, 35, 36, 44, 49; implied 
 power to contract for, 41, 45; 
 acquisition of, by eminent do- 
 main, 170-172; water power in 
 connection with, 229, 230; see 
 also Public utilities 
 
INDEX 269 
 
 Weights and measures, 39, 40, Zones, establishment of, as a part 
 
 174 of city planning, 192; for ex- 
 Wharfingers, regulation of, 178, elusion of noxious industries, 
 
 181, 189 96-100; general industrial, 100- 
 
 Wines, regulation of price of, 106; for building heights, 106- 
 
 176 109; for building lines, 109-1 14; 
 
 Wood business, see Fuel bust- for exclusively residential pur- 
 
 ness poses, 11 4-1 18 
 
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