Page:Toll Roads and Free Roads.pdf/173

Rh the purpose of the appropriation, setting forth a pertinent description of the land, and the estate or interest therein desired to be appropriated. For waterworks purposes and for the purpose of creating reservoirs to provide for a supply of water, the council may appropriate such property as it may determine to be necessary.”

The excess condemnation of the properties in question is proposed by the resolution adopted by the city council, but the purpose of the appropriation is stated in the resolution only in the most general terms as being “in furtherance of the said widening of Fifth Street” and “necessary for the complete enjoyment and preservation of said public use.” The ordinance providing for the excess appropriation was not more specific, declaring simply that it is “in furtherance of the public use,” described as the widening of Fifth Street, and “for the more complete enjoyment and preservation of the benefits to accrue from said public use.” In what way the excess condemnation of these properties was in furtherance of the widening of the street, and why it was necessary for the complete enjoyment and preservation of the public use of the widened street are not stated and are thus left to surmise.

The plaintiffs alleged in their bills of complaint that the excess condemnation is “a mere speculation upon an anticipated increase in the value of the properties adjacent to said improvement,” and that the properties were taken “with the design of reselling the same at a profit to private individuals to be used for private purposes, and no use of said property by or for the public is intended or contemplated.” The answers of the city denied these allegations and summed up the position of the city by saying that the application of the principle of excess condemnation in these cases would enable the city (1) “to further the appropriate development of the south side of Fifth Street” by using or disposing of the excess properties in tracts ”with such size and with such restrictions as will inure to the public advantage,” and (2) that the increase in value of the properties in question which may accrue by reason of the improvement contemplated by the city “will pay in part the very heavy expense to which the city will be put in effecting the improvement.”

The city argues that in resorting to excess condemnation legislative bodies generally have had in view the following three purposes (1) the avoidance of remnant lots, (2) the preservation and amplification of the improvement, and (3) the recoupment of expense from increased values. Both the district court and the circuit court of appeals concluded that the theory of remnants, and of the protection and preservation of the improvement, were not applicable to the present cases. Both courts considered that the sole purpose of the city was the recoupment by the resale of the properties in question of a large part of the expense of the street widening. In this view, both courts held that the excess condemnation was in violation of the constitutional rights of the plaintiffs upon the ground that it was not a taking for a public use “within the meaning of that term as it heretofore has been held to justify the taking of private property.” The circuit court of appeals added that the provision of the Constitution of Ohio relating to excess condemnation, supra, “would seem to mean in furtherance of the normal use to which the property that is occupied by the improvement is devoted here the use and preservation of the street for the purposes of travel,” and the court held that if the provision means that property may be taken ”for the purpose of selling it at a profit and paying for the improvement it is clearly invalid.”

In this court, the city challenges the propriety of the assumption upon which these rulings below were based, that is, that the city was proceeding on the theory of the recoupment of expense by resale of the properties. While contending that this would be a valid purpose under the constitution of Ohio, and would constitute a taking for public use and therefore would be consistent with the fourteenth amendment, the city insists that its purpose in the present cases cannot thus be delimited. The city calls attention to the general statements in the resolution and ordinance adopted by the city council and declares that these broad declarations constitute “practically all the evidence which directly shows the purpose of the city.” While reference is made to what is said in its pleadings with respect to its position, the argument for the city adds that “obviously an impersonality such as a city cannot very well testify as to what its plans and hopes are.” The court is asked to take judicial notice of certain desirable objects which the city might have in view. The city urges that, when the improvement is completed, the city council will doubtless be in a position to determine what sized tracts and what kinds of restriction will be best suited for the harmonious development of the