Page:Toll Roads and Free Roads.pdf/174

128 south side of Fifth Street. But the city also insists that it may never resell the excess; that it is not compelled to so by the constitution; that the question is one to be determined in the future; that recoupment can come only from a sale, and that until by some act the city evidences an intent to sell it cannot be said to be proceeding only on a theory of recoupment. The city says that it may preserve the public use in many ways, and that sale with restrictions is one that may hereafter be chosen, but that there is no warrant upon this record for discarding every possible use in favor of a use by sale that may, among other things, result in a possible recoupment.

We are thus asked to sustain the excess appropriation in these cases upon the bare statements of the resolution and ordinance of the city council, by considering hypothetically every possible, but undefined, use to which the city may put these properties, and by determining that such use will not be repugnant to the rights secured to the property owners by the fourteenth amendment. We are thus either to assume that whatever the city, entirely uncontrolled by any specific statement of its purpose, may decide to do with the properties appropriated, will be valid under both the State and Federal Constitutions, or to set up some hypothesis as to use and decide for or against the taking accordingly, although the assumption may be found to be foreign to the actual purpose of the appropriation as ultimately disclosed and the appropriation may thus be sustained or defeated through a misconception of fact.

It is well established that in considering the application of the fourteenth amendment to cases of expropriation of private property, the question what is a public use is a judicial one. In deciding such a question, the court has appropriate regard to the diversity of local conditions and considers with great respect legislative declarations and in particular the judgments of State courts as to the uses considered to be public in the light of local exigencies. But the question remains a judicial one which this court must decide in performing its duty of enforcing the provisions of the Federal Constitution. In the present instance, we have no legislative declaration, apart from the statement of the city council, and no judgment of the State court as to the particular matter before us. Under the provision of the constitution of Ohio for excess condemnation when a city acquires property for public use, it would seem to be clear that a mere statement by the council that the excess condemnation is in furtherance of such use would not be conclusive. Otherwise, the taking of any land in excess condemnation, although in reality wholly unrelated to the immediate improvement, would be sustained on a bare recital. This would be to treat the constitutional provision as giving such a sweeping authority to municipalities as to make nugatory the express condition upon which the authority is granted.

* * * It is an established principle governing the exercise of the jurisdiction of this court, that it will not decide important constitutional questions unnecessarily or hypothetically. Liverpool, New York & Philadelphia Steamship Company v. Commissioners of Emigration, (113 U. S. 33, 39); Siler v. Loutsville & Nashville Railroad Company (213 U. S. 175, 191, 193); United States v. Delaware & Hudson Company (213 U. S. 366, 407). The present cases call for the application of this principle. Questions relating to the constitutional validity of an excess condemnation should not be determined upon conjecture as to the contemplated purpose, the object of the excess appropriation not being set forth as required by the local law.

We conclude that the proceedings for excess condemnation of the properties involved in these suits were not taken in conformity with the applicable law of the State, and in affirming the decrees below upon this ground we refrain from expressing an opinion upon the other questions that have been argued.

STATE CONSTITUTIONAL AMENDMENTS

The decision of the Supreme Court came after the adoption of amendments of the constitutions of seven States, which specifically authorize the excess taking of land and its resale under certain conditions; and it was followed by an amendment of the constitution of Pennsylvania to the same effect.

The first of the State constitutions to be amended was that of Massachusetts in 1911. This was followed in 1912 by Ohio and Wisconsin, in 1913 by New York, in 1916 by Rhode Island, in 1928 by Michigan and California, and in 1933 by Pennsylvania.