"We therefore content ourselves with saying that while this court has refrained from any attempt to define with precision the limits of the police power, yet its disposition is to favor the validity of laws relating to matters completely within the territory of the state enacting them and it so reluctantly disagrees with the local legislative authority, primarily the judge of the public welfare, especially when its action is approved by the highest court of the State whose people are directly concerned, that it will interfere with the action of such authority only when it is plain and palpable that it has no real or substantial relation to the public health, safety, morals, or to the general welfare."

In applying this same principle specifically to the power of eminent domain the same court calls attention to the fact that:

"No case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses in conformity with its laws. . . We must not be understood as saying that cases may not arise where this court would decline to follow the state courts in their determination of the uses for which land could be taken by the right of eminent domain. The cases cited, however, show how greatly we have deferred to the opinions of the state courts on this subject, which so closely concerns the welfare of their people. . . . It remains for the future to disclose what cases, if any, of taking for uses which the state constitution, law, and court approve will be held to be forbidden by the Fourteenth Amendment to the Constitution of the United States."

16

Much uncertainty has existed in the law of this country with regard to those rights which have always been regarded as most important, such as that of liberty, equality before the law, property and due process of law. There are two main reasons for this unfortunate fact: first, the litigant is entitled to invoke the protection of the guaranties of both the national and state constitutions, and these guaranties, although dealing with the same fundamental rights, often vary both in form and in substance in the various constitutions; so that it is difficult to determine whether and to what extent cases with regard to the same general subject in different jurisdictions are in

15 Cusack Co. v. Chicago, 242 U. S. 526 (1917). The italics are the author's.

10 Hairston v. Danville & Western Railway, 208 U. S. 598 at 607 (1908).

accord or in conflict.

Second, until recently appeals in such cases from the state decision to the Supreme Court of the United States, by which alone such doubts and differences can be eliminated, were permitted only in those cases in which the state provision was upheld by the state court. By a recent change in law 17 appeals are now allowed whichever way the state court decided the question, and in so far as uncertainty was caused by this phase of the law it may be expected with time to disappear.

It is generally conceded that the decisions of the Supreme Court of the United States have been more favorable to measures intended to promote social reform than those of the highest courts of the individual states.18 This is due in part, no doubt, to the fact that as a rule the members of the Supreme Court of the United States, chosen from the entire country, have had a wider and more varied experience than the judges of the highest courts of any one of the states; but in part it has been because heretofore invariably, in cases of conflict of opinion in such questions, only the decisions sustaining state action have come before the United States Court for review, and these decisions were supported by the strong presumption in favor of the action of the state authorities.

Difference between Police Power and Eminent Domain. For a statute or other governmental act to be a valid exercise of the power of eminent domain or of the police power, it is evident from what has already been said that it must in either case tend to promote the public health, safety, morals or general welfare. What, then, is the line of difference between these two powers? The analysis of the cases seems to show that it is largely one of degree. Is it reasonable and proper, under all the circumstances, that the public good sought should be attained without compensation to those whose rights are to be limited to this end? If, on the whole, those affected are benefited by the measure, if the right surrendered can no

"See U. S. Comp. Stats., 1916, Vol. 2, Sec. 1214; (Judicial Code, Sec. 237 as amd.)

18

See on this subject, Goodnow, Social Reform and the Constitution (the Macmillan Company, New York, 1911); especially pp. 329 ff.

longer, in the light of advancing public opinion, be retained in its fullness by its present possessor, if the sacrifice to him is slight or if the number affected is great, so that compensation is impracticable-in all such cases compensation is not provided for; otherwise the law demands it. In the decision, history, custom, opinion, as well as surrounding circumstances, play their part.

PART II

PLANNING THE CITY AS A WHOLE

The City Plan.—Since the purpose of city planning is the attainment of unity in city construction, there must be, in all the steps of city construction worthy the name of city planning, either definitely on paper or more vaguely and variably in the minds of the makers of the city, a plan, in outline at least, of the city as a whole, to which any part of that planning, however small, shall relate. The creation of such a plan, covering the entire area within the city's sphere of influence, is the first task of the city planner, to be followed from time to time, as necessity arises, by the planning of details, extensions, and such modifications of existing features as unforeseen changes or further experience and study seem to dictate.1

Content of Plan.-What, then, should the plan contain? The complexity of city life is great, the factors of its physical development, numerous. In order to secure unity, planning should include and harmonize as many as possible of these factors, public, semi-public and private, such as the systems of streets with their building lines or set backs, the waterfront and its improvements, the parks and other public open spaces, the public and semi-public buildings and their sites, the transportation systems, both local and long distance, with their respective freight and passenger stations and terminals, the gas, water, electric and similar public utility systems, the subdivision of building land and the regulation of the height, area with relation to the size of lot, and use of structures on it. There is more or less adequate precedent for the inclusion of all the above features in a city plan in this country.2

"With regard to the limitation, for practical reasons, of the field of city planning, see p. 1, note 2.

See p. 562, note 32.

?

The entire urban area, however, need not be planned in detail. Thus spaces for public buildings and parks should be reserved, to be devoted to more specific uses and laid out as required; in the newer parts of the city only the principal streets need be fixed, leaving the minor streets to be filled in from time to time as the necessity for them arises; and, beyond the present city, the city of the future may be left unplanned except for the laying out of the main thoroughfares connecting the city with the cities and villages outside, and, perhaps, the imposition of provisional building and zoning regulations for the areas between them.

Partial Planning.-Very few cities in this country have comprehensive city plans, although in many of them certain features have been thought out and executed with care and with good results. This partial method of planning is open to grave criticism. New York, for instance, built an extensive system of subway and elevated transportation to relieve congestion in the older parts of the city, which, for lack of zoning restrictions, has been instrumental in adding to the city new congested areas without greatly relieving those already in existence. Nevertheless partial planning is not necessarily a mistake. The American public is not educated to the necessity of a comprehensive plan, but is sometimes alive to the advantage of some one feature of such a plan, as, for instance, transportation or zoning; and the planner, unable to do what he would, must do what he can. In such cases, however, the need of a general plan should always be kept in mind, and as an incident to the smaller task, as much of the larger undertaken as is feasible. This is in fact the practice of wise city planners; for instance, all good zoning is based on preliminary surveys, which are partial planning studies.

Enforcement of Plan.-The city plan, in order, that the many features included in it may in their development be made to conform to it, must be enforced. These features are widely different in their nature, and the measures to be taken to secure this conformity must vary accordingly. The public features, such as the highways and open spaces, are constructed by the city, or, if built by private persons, become public only by ac