That power to put practical city planning into operation throughout the State be made a topic of investigation, that the articles of the executive body's organization and powers be defined in a draft of a bill and submitted for enactment at the next Legislature, is urged as a work of great importance and timeliness.

An agency for studying the local problems would well be constituted by appointment of a board of city or town planning. appointment to be by the mayor; the duties of its members would be to investigate and devise plans; office may be without salary and be for a period of five years; one of the city officials to be included in the board of five in order to coordinate the work of the city. Annual reports and recommendations would be made by the city council, and to a central authority, such as a State board, whose sanction should be necessary before the plan becomes operative.

Let us cherish the hope that Oregon will assume leadership in this field of endeavor now engaging the careful attention of students of municipal affairs throughout the length and breadth of the continent.

BY W. P. LAROCHE, CITY ATTORNEY, PORTLAND

Excess condemnation is the acquisition through condemnation proceedings by the government of more land than is physically required for a public improvement such as a street or park.

It is an old principle in Europe. England adopted the doctrine in public improvements in the year 1861. Under this principle, Paris constructed the Avenue de l'Opera; Vienna, the Ringstrasse; and London, the Kingsway. The Kingsway cost over $25,000,000.00, and, according to the statement of the London county council, the receipts from the sale and lease of the excess lands realized a sum sufficient to defray every dollar expended upon this magnificent highway. In the improvement of Northumberland Avenue, the city of London, under this procedure, made an actual profit of $600,000.00 over the cost of land and improvement. This method has been in use for a number of years past in the cities of South America. In Europe, it has been employed not only for the purpose of recouping the cost of opening and improving highways but of enjoying and absorbing all of the increase in values accruing to the lands taken in excess of the actual needs of the highways by reason of the improvement. The extreme application of this principle is found in cases where large areas of land adjacent to cities have been acquired for purposes of platting, and of selling the resulting lots with restrictions as to location, type, style and cost, at such increases over the cost of all money so expended as to yield a handsome profit from the enterprise. The justification for the exercise of this power of excess condemnation by the government has been grounded on the theory that when the lands of the individual owner have been so taken, and compensation equal to the fair market value of such lands has been made to the owner, that his rights in the property cease-that no wrong has been done him, and that the government is entitled, as a matter of right, to all increases resulting from the expenditure of public money. As early as 1813, New York tried to enforce this principle. In 1904, Ohio adopted it in case of public parks, followed by Maryland in

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1905, and Virginia in 1906, and in 1907, Pennsylvania and Connecticut passed similar laws, and Massachusetts and other states have passed constitutional amendments adopting the principle. Our own State, in 1913, passed an excess condemnation act, to which reference will be made later, and there are many evidences that in the various commonwealths of this country the application of this principle is being given earnest and thoughtful consideration.

The conception of property relations in this country are essentially different from those of Europe. In the United States real property is held absolutely by the individual, subject only to the exercise by the state of the three great governmental powers-the right of eminent domain, the police power, and the right of taxation. This conception of property relations is practically unknown in Europe, where the right of taking private property by condemnation for public use is without restriction, and, therefore, any consideration of the law of excess condemnation in the United States makes it necessary to examine the limitations contained in the federal and state constitutions and the decisions of our court of last resort. The time at my disposal permits of only a brief treatment of this interesting side of the question.

Most of the European countries have flexible constitutions under which any statute may be passed, while all governmental powers in the United States are subject to inflexible written constitutions amenable only to amendment. In Europe, therefore, many great and beneficial undertakings are possible, which in this country are forbidden, or at least are permitted in modified form only. For an illustration of this difference, in many European cities the architectural designs of buildings must be submitted to a governmental approval before a private owner may begin construction. Massachusetts attempted to so restrict buildings and its highest court denied the exercise of this power on the ground that such restriction was an unreasonable interference with private property rights. The private property rights of the individual in this country are held to be sacred, and the people and the courts have always been zealous in protecting them against any encroachment, so that it is apparent that in the application of the principle of excess con

demnation in the United States the viewpoint is essentially different from that in Europe. The Constitution of the United States provides: "No person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation." The constitutions of the several states are almost similar in regard to the taking of private property; that of our State requires: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in case of the State, without such compensation first assessed and tendered." In the exercise of the power of eminent domain, the State may take private property subject to two restrictions: For a "public use" and "upon payment of just compensation." The restriction "upon payment of just compensation" is easily met and offers no real legal obstacle. It is upon the construction of the restriction a "public use" that the exercise of the power of excess condemnation is to be determined.

"Whether it is expedient or wise for the Legislature to grant this authority to take property for public use is purely a political question and one solely for the Legislature. But whether the use to which it is sought to appropriate the property authorized to be taken, is a public use, is a judicial question for the determination of the courts." Philadelphia Y. & S. Ry. Co's Petition, 203 Pa. 354, 362.

"If a public use be declared by the Legislature, the courts will hold the use public, unless it manifestly appears by the provisions of the Act that they can have no tendency to advance and promote such use." Attorney General v. Williams, 55 N. E. 77.

No definition of the term "public use" is broad enough to endure. The statement of Justice Gilchrist of the Supreme Court of New Hampshire, in the case of Concord Railroad v. Greeley, 17 New Hampshire 47, is frequently quoted with approval by writers and courts. He said:

"Such a definition should comprehend not only all the existing public purposes justifying such a proposition, but should anticipate the future exigencies of society, demanding new laws and varied exercise of the protecting and fostering aid of the State, and I therefore refuse to undertake the very difficult, if indeed practicable task, of framing a definition which shall determine in every case the validity of a law appropriating to such use the land of individuals."

And the court in the case of Olmstead v. Camp, 33 Conn. 551, in discussing the line between public and private uses, said:

"From the nature of the case there can be no precise line. The power requires a degree of elasticity, to be capable of meeting new conditions and improvements and the ever increasing necessities of society. The sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and, in cases of gross error or extreme wrong, controlled by the dispassionate judgment of the court."

The conception of a public use must alter and expand with the development of civilization and especially with the growth of cities. Mr. Justice Shiras, of the United States Supreme Court, in sustaining an act of Congress providing for the condemnation of land for a public park in the District of Columbia and assessing part of the cost upon the property especially benefited, 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."

And, in the case of Attorney General v. Williams, 174 Mass. 476, the Supreme Court of Massachusetts, said:

"The uses which should be deemed public in reference to the right of the Legislature to compel an individual to part with his property for a compensation, and to authorize or direct taxation to pay for it, are being enlarged and extended with the progress of the people in education and refinement. Many things which a century ago were luxuries, or were altogether unknown, have now become necessaries. It is only within a few years that lands have been taken in this country for public parks. Now the right to take lands for this purpose is generally recognized and frequently exercised.

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