CHAPTER III.

PLANNING ADMINISTRATION IN THE UNITED STATES

Planning Jurisdiction in the United States.-The United States is a federal union. It consists of areas within states, ruled both by the national and by state governments and of areas outside the limits of any state, controlled entirely by the national government except as it has voluntarily delegated power to local governments. Within the states the nation governs in matters of national, the states in matters of state and local, concern. The boundaries of state and national powers within the states are defined by the Constitution of the United States. Outside state limits, for the most part, the nation has granted localities the right of local self-government. In the District of Columbia, however, it has been held that Congress may delegate only municipal power, the general legislative power remaining necessarily in Congress.1

Constitutional Limitations on Planning Power.-Jurisprudence regards it as self-evident that all power-power to act legally on any subject in any way-must be located somewhere; and in a democracy conceives of the people, in so far as they have not parted with it, as possessing this complete sovereignty. In creating a government the people give it certain powers only, forbidding it to exercise the others, or limiting it in the method of exercising them. Thus no government in the United States may take property for a public use without compensation or deny to any one the equal protection of the law. These limitations and the interpretations put on them by the courts, as has already been shown, profoundly influence

1 'Stoughtenburg v. Herrick, 129 U. S. 141 (1889).

city planning in this country. To these limitations all governments in the United States are subject.2

Planning Powers of the United States Government.— In addition to its full planning powers outside state limits, the United States Government, by virtue of its control over matters of national importance, has (1) a power of local planning within the states and (2) a power of regional planning and (3) of investigation and advice, in all parts of the country.

Local Planning Powers of the United States Government Within the States.-Local planning is, in most of its phases, a state rather than a national matter. There are, however, many national purposes for which the United States Government may take and develop land within a city or other local area, as for instance for a post office, under its power to establish post roads, or for a fort or arsenal, under its war power. The power of the nation in so doing is not merely the power to compel the state to act for it; it may directly control persons and property in the state for these national purposes, and in its exercise it is free from state control. Thus the United States recently built a custom house in Boston-an ornament to the city, as it happened-higher than the established building limits; and New York City, being unable to take by eminent domain the right to construct a tunnel for a new subway under the post office on City Hall Square, was compelled, before the United States would grant the city that right, to give the United States a covenant agreeing in some respects to construct the subway at this point in accordance with the wishes of the national government.

Planning Power Incident to the National Control over Interstate and Foreign Commerce.-Perhaps the only power surrendered by the states to the nation which greatly affects city planning is that over interstate and foreign commerce. Commerce includes transportation, both by land and by sea, and the instruments of transportation, such as railroads, ship

'Except possibly the island dependencies, to some of the minor limitations; see DeLima v. Bidwell, 182 U. S., p. 1; Dooley v. U. S. ib., p. 222; Downes v. Bidwell ib., p. 244; Huus v. N. Y., etc., SS. Co. ib., p. 392; The Diamond Rings, 183 U. S. 176 (all, 1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. U. S., 195 U. S. 138 (1904).

ping and harbors. Probably the nature of this grant by the individual states to the United States of the power to regulate commerce, and its effect on city planning, may best be understood by considering with some fullness the resulting power of the United States and the individual states over the development of state harbors.

National and State Jurisdiction over State Harbors.— The use of water for navigation is, as has already been stated, dependent upon the use of the upland fronting on it, with the right appurtenant to this upland to build piers and wharves to deep water; in this country all waters being in law navigable which are navigable in fact.

In the Constitution of the United States the states give the United States Congress the power "to regulate commerce with foreign nations and among the several states and with the Indian tribes." Since commerce includes transportation, power to regulate foreign and interstate commerce by water includes such power as may be necessary for the purpose over all waters navigable for this commerce. These waters are sometimes called the "navigable waters of the United States" and include all navigable waters in the United States, except such as are entirely within a state with no navigable connection, natural or artificial, with another state. This jurisdiction over "the navigable waters of the United States" carries with it such jurisdiction as may be necessary over the land under water and the upland. Subject to this national power these lands and waters remain in state jurisdiction and ownership. The exclusive right of the nation in international bodies of water, with the land under it, divided as just indicated between national and state governments, extends, according to international law, for a marine league from the shore. Outside that limit the land and water belong to all nations in common.

Thus at the border of the land fronting on interstate navigable waters national and state powers meet and overlap. Over this land, with its adjacent waters, the state may regulate its local affairs; over these waters, with their adjacent land, the United States may regulate interstate and foreign commerce and its instruments. What is the line between these two juris

dictions? In order to draw it we must very briefly consider the methods in the National Constitution of the grant of powers by the states to the United States.

The legislative powers of the Federal Government, granted to it by the states, are divided into two classes-first, those which are exclusively in the national government and may in no case be exercised by a state; and secondly, those which, if not exercised by the United States, may be employed by the states. This distinction has been clearly put by Willoughby in his work on the Constitution 3 as follows:

"Some of the powers granted by the Constitution to the Generai Government are expressly denied to the States. As to the exclusive character of the federal jurisdiction over these there cannot be, of course, any question. It has, however, often been a matter of difficulty of determination whether or not various of the powers given to the United States, but not expressly made exclusive or denied to the States, are so exclusively subject to federal control that the exercise of them by the States is under no circumstances permissible. Shortly stated, the principle that the Supreme Court has laid down for determining the question in each particular case as it has arisen has been the following: As regards generally the powers granted to the National Government there is a difference between those which are of such a character that the exercise of them by the States would be, under any circumstances, inconsistent with the general theory or national polity of the Constitution, and those not of such a character. As regards this latter class, the Supreme Court has held that as long as Congress does not see fit to exercise them, the States may do so. Laws thus passed by the States are, however, of course subject to suspension at any time by the enactment by Congress of laws governing the same subjects."

National and State Regulation of Pilotage, Etc.-Under this principle the commerce clause of the United States Constitution was held not to forbid the state regulation of pilotage in interstate harbors. In support of its decision to this effect the Court says: 4

"The power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule,

4

Vol. I, p. 73.

Cooley v. Port Wardens, 12 Howard (U. S.) 299 at p. 319 (1851).

operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation. . . .

...

It is the opinion of the majority of the court that the mere grant to Congress of the power to regulate commerce, did not deprive the states of power to regulate pilots. . . .”

The doctrine of the above case is now the established law. In a later case the court in so stating adds:

5

"The doctrine now firmly established is that when the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, or improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the State can act until Congress interferes and supersedes its authority; but when the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the States, such as transportation between the States, including the importation of goods from one State to another, Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free."

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National Regulation of Pier and Bulkhead Lines, Etc. -In this country each state has complete and exclusive authority over non-interstate navigable waters, and may regulate bulk head and pier head lines and the construction of bridges over such waters as it pleases; over these matters in interstate navigable waters the jurisdiction of the state, as we have seen, depends upon whether or not the United States has assumed jurisdiction. With regard to these matters the United States has seen fit to take jurisdiction by passing regulations with regard to them. These regulations prohibit the creation of any obstruction, not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States, thus making it unlawful to build any wharf, pier, bulkhead, etc., in any port, navigable river, or other waters of the United

Bowman v. R. Co., 125 U. S. 465 (1888).

See also Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204 (1894).