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National municipal review, May, 1920

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National municipal review, May, 1920
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National municipal review
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National Municipal League
Kitchen, Victor C.
Coggeshall, R.
Long, A. A.
Arthur, B. E.
Dodds, H. W.
Otis, Harrison Gray
Basset, Edward M.
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Philadelphia, PA
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National Municipal League
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English

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Full Text
NATIONAL
MUNICIPAL REVIEW
Vol. IX, No. 5 MAY, 1920
Total No. 47
VIEWS AND REVIEWS
i
From time to time when reformers get to musing together, somebody mentions the need of a state-wide militant civic association to which can be committed the task of pressing consistently and influentially for better conditions in the state government. The California Taxpayers’ Association is the only one in the country and it is doing a beautiful job but from this distance it appears not to be rounded out by activity of the rank and file of the membership in conventions and committees which, in the long run, is essential to influence. In New York and Illinois there are those valuable associations which keep tabs on legislators and supply the public and the candidates with terse paragraphs of elaborately substantiated fact, but these are bureaus rather than associations and are largely prevented from lobbying for progressive measures by the necessity of irritating as candidates the very men they must cajole as legislators. Elsewhere there are state manufacturers associations and state chambers of commerce with some civic items in their programs but they, of course, cannot fill the bill although the New Jersey Chamber of Commerce comes pretty near it.
In Ohio and in New York the project of a state civic league has been in the minds of many for a long time but
nothing tangible has yet been developed. In various states the National Municipal League has members enough to constitute a fairly satisfactory nucleus—ninety members in Illinois, for example—and some months ago the League’s executive committee authorized the secretary to call them together with a view to organizing a state chapter that could urge the National Municipal League’s line of reforms upon the constitutional convention; prospective change of secretaries, however, prevented action.
The difficulty of getting up state civic organizations is in the fact that the members are hopelessly scattered. Committees cannot meet. Quorums cannot be mustered. No matter where you locate the office and secretary the organization forthwith may be suspiciously tarred as being a “that-city bunch” and interest in other centers may jealously wane. A state association is much harder to organize than a city association.
But it can be done. And sooner or later such state associations must come. Their opportunities are immense and they are likely to achieve victories more easily than local reformers ever did.
n
The practice of issuing separable Supplements with this magazine has gone far enough to prove its value


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rather definitely already. Mr. Bassett’s admirable contribution on “Zoning” in this issue is the fifth of these pamphlets. We print an over-run of each and carry a stock on hand for which there is usually a prompt and lively demand in singles and in quantities. Mr. Purdy’s Supplement on “Assessment” is already in its third edition, paying for itself as it goes.
m
The reformer and politician often represent two certain opposing types of humanity,—what Raymond Robins is fond of describing as the “indoor” and the “outdoor” minds.
Robins himself is an outdoor man; so is Hoover, so was Roosevelt,—a type that progresses most rapidly when called upon to deal with people. The outdoor type likes rough and ready methods and prefers to carry his office in his hat. Such a man is unhappy when dealing with scientific or abstract work on pieces of paper in a quiet office, or in dissecting a question of principle. He cannot read a bureau of municipal research report or install a system or stand by a precedent. To him the bureau is a flimsy camouflage for its principal financial supporter. To sell him an idea, the bureau director must tell it to him in slang.
The “ indoor ” man on the other hand hears you talk and then asks you to write it up for him as a report. He does his best thinking in solitude and would rather write it to you than argue it, e.g., Woodrow Wilson. He excels in cold analysis and cannot reason until he has discovered a principle. To sell him an idea, convert it into a syllogism.
The reformer is generally an indoor man and the politician is always an outdoor man. For most of the jobs in the modem city hall, the indoor type is superior. But for a popular repre-
[May
sentative, the outdoor man is vastly better. Most of the lawyers who argue brilliantly at the legislative committee hearing would be positively illiterate if assigned to the job of getting votes at a truckmen’s social club.
The outdoor mind understands better than does the indoor mind that the best basis for persuasion is sympathy. If you would convince a stranger, spend nine-tenths of your time showing him that you and he think the same way about everything, that you are mad about the very things that exasperate him, that you are, indeed, his kind of man, and when you have thus marketed yourself to him, you can easily sell him one of your ideas. But the indoor man cannot honestly do that. His discriminations are so positive that he has to disagree even where to concede would not impair his purpose. Intolerance to a certain extent goes with his intellectuality.
Moral: The indoor reformer who deals so expertly with abstract ideas should recognize that government is the art of handling human beings and that the outdoor man is an essential element in the structure.
IV
With this issue we absorb the SHORT BALLOT BULLETIN which for nearly ten years has been published bi-monthly by The National Short Ballot Organization.
When the National Municipal Review was made a monthly it became as prompt with Short Ballot news as the Bulletin and since then there has been little in the Bulletin which has not been covered also, and more fully, in the Review.
Accordingly the April Short Ballot Bulletin is the last and in it the Short Ballot advocates are urged to subscribe to the Review.
Richard S. Childs.


A CITY FOR SALE
BY VICTOR C. KITCHEN
Strange spectacles have followed in the wake of war and not the least of these is the sight of an entire city of 35,000 population, Nitro, West Virginia, offered for sale to the highest bidder. :: :: ::
i
In France the war has ruined many cities and razed them to the ground. But in America it has caused an entire city of 3,400 buildings to spring up and flourish on flat meadow land where no structure of any kind had stood before.
This city did not just “happen to grow” along cow path lines of least resistance, but was scientifically planned in advance, pipe for pipe, street for street, building for building, and then completely built as a unit by engineers of the United States government.
It was planned as a great industrial center for the economical production of war supplies and to augment the greatly overtaxed capacity of already existing factories. And it was planned to include the largest number of industrial advantages—a great industrial center by purpose—not by luck.
The site, for instance, was chosen at a point now known as Nitro, West Virginia—a point which represents the shortest average distance to the largest number of important cities and supply centers. And it was located on the banks of the Kanawha River in the heart of the Kanawha and New River coal mining regions, producing the finest steam and coking coal in the United States.
This region was also found to be rich in natural gas and other natural resources and climatically favorable to industrial activity.
With transportation charges and the cost of power thus reduced to a mini-
mum and all other favorable factors determined in advance, the streets were laid, the factories built, workmen’s cottages and executive residences were erected, lighted, wired, piped, heated and furnished, and stores, schools, a hospital, fire houses, police station, churches, theatres, hotels, dormitories, restaurants, recreation centers and municipal buildings sprang into being.
This “going” city, able to employ, house, feed, educate, entertain and protect a population of 35,000, was completed and occupied in a little less than one year. And the work began.
ii
But scarcely had the wheels commenced to turn when the armistice put an end to hostilities and the need for Nitro as a government-owned property became extinct.
The entire city was then placed upon the market with its 729 completed manufacturing buildings, many of them fully equipped, piped, wired and provided with railroad sidings, with its twenty miles of streets and sidewalks, its two thousand cottages for laborers, its forty-nine miles of sanitary sewers, its colossal filtered water supply, its thirty-two miles of natural gas lines, its eighteen miles of broad gauge and twenty-five miles of narrow gauge communicating railways, its four-hun-dred-bed hospital and twenty-four-room school, its tremendous classification yards, its modern fire and police protection systems, its milk plant and its big department store, its store


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blocks, clubs, Y. M. C. A. and moving picture theatres—all offered to a single purchaser.
The city was purchased as a whole by the Charleston Industrial Corporation of Nitro, West Virginia.
This corporation is taking advantage of the completed plants and factories, installed equipment, low power costs and other advantages, to develop Nitro as a great industrial center for manufacturers of peace time products.
Again the city has been placed upon the market—a city for sale—not as an entire city, this time, but in plant or sectional units, offered to manufacturers who seek a new plant location or branch factory site where the largest number of industrial advantages are concentrated, and where problems of construction, equipment, transportation, power supply and labor housing conditions have been already solved for them.
Aside from its technical industrial advantages, the city of Nitro offers an interesting study to municipal experts.
Its modern school, for instance, is entirely a ground floor structure, with every one of its twenty-four rooms opening directly outdoors. Its four-hundred-bed hospital comprises a group of twenty-seven separate buildings most modernly equipped and scientifically arranged.
Its filtered water supply with its million gallon sedimentation basin, pumping stations, filters and hill tanks is a model of modern engineering.
Its fire stations, fire fighting apparatus, complete Gamewell alarm system, high water pressure and sprinkled buildings, have earned for it the slogan of the “best protected city in the world. ”
Its municipal center, barracks, mess halls, kitchens, store blocks, ice plant, milk plant and its various types of workmen’s cottages—all are models
[May
worthy of close study by municipal students and engineers.
Throughout, each section, unit and element of the city are carefully related to the central plan. Black and white elements of the population are segregated, for instance, and houses suited to various types of labor are located in the vicinity of the plants which require that type of labor.
The four store blocks are situated so that one of them, at least, may be easily reached from every section of the city. Recreation centers are provided at the most convenient locations.
Bus lines unite all points too distant for easy walking. Plants are tied together by a net work of intercommunication lines. And the manufacturing and residential areas are distinctly separated—the factories occupying the flat lands along the river bank, while the residences range back into the foothills.
hi
Altogether it is strange to think of such a large, well planned and thriving city being offered as a “buy” to any single purchaser. It is the first complete and self-sufficient city in this country to “change” hands as an entity. It is a “ war baby ” abandoned by its mother and adopted by a modern business corporation for productive peace time enterprise. And it has proved to be a lusty child. The wheels of Nitro are beginning to turn again. Manufacturers were quick to recognize its unique advantages and are already “moving in” to the buildings so recently vacated by the toilers of war. The taking over of Nitro was begun but a few weeks ago. Its first peace time plant, taken over by a large foundry equipment manufacturer, went into active operation in April—giving immediate employment to several hundred workers.
NATIONAL MUNICIPAL REVIEW


THE NEW GERMAN CONSTITUTION
BY R. COGGESHALL Harvard Uniterrity
In the new republican constitution of Germany written at Weimar last year are to be found the initiative, referendum, recall, proportional representation and municipal home rule! All, however, being more or less Germanized. :: :: :: :: :: :: :: ::
i
The constitution of the German Reich or commonwealth was framed by an elective constitutional convention which met at Weimar during the spring and early summer of 1919. It went into force on August 11 of that year. It is a relatively long document, about forty-eight pages in English translation and containing many interesting provisions, political, social, and economic.
The statesmen who assembled at Weimar in the summer of 1919 evidently wished the new German republic to stand beyond doubt as the supreme power in the nation. From Prussia they had learned a bitter lesson concerning the consequences of state domination. As a result they placed “exclusive” jurisdiction, or such supervisory jurisdiction as will easily become absolute, in the hands of the central authorities. The central government was given, in addition, practically unlimited taxing power, and a wide range of authority to guide the law-making authority of the states.
ii
The position of the central government, or government of the commonwealth, in relation to the states having been defined, the national executive was the next problem. The president is to be “chosen by the whole German peo-
ple ” for a term of seven years. In the provision for a presidential “recall” the framers showed political acumen as well as enthusiasm for democracy. The national assembly, or lower house, may by a two-thirds vote ask the people to recall the president, but, if the people refuse to recall him, he starts a new seven year term and the assembly is dissolved. This will prevent a hostile legislature from acting without assurance of public support. The constitution expressly provides that all orders and directions of the national president require for their validity the countersignature of a minister. “By the countersignature responsibility is assumed.” The English tradition of ministerial responsibility is thus crys-talized into words. It is interesting to note that the cabinet “will make its decisions by a majority vote. ”
The national legislature is divided into two houses, the lower being known as the national assembly (Reichstag), the upper as the national council (Reichsrat). National laws, however, are not enacted by the two houses in concurrence, but by the assembly alone. The upper house may, nevertheless, object to a law, in which case the law may be referred to the people or dropped altogether. The latter step is the only form of veto provided in the constitution—suggestive of our “ pocket veto. ” If, however, the lower house overrides the objection by a two-


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thirds vote, the law is either referred to the people or promulgated within three months as the president may decide. The people may initiate a bill “if one-tenth of the qualified voters so petition. ” It is provided that the constitution may be amended by a two-thirds vote of both houses, or by a majority of all the qualified voters at a referendum.
Under the title of “Fundamental Rights ... of Germans ” the new German constitution contains a bill of rights. But these various rights are in almost every case seriously impaired by such phrasing as “exceptions are permissible only by authority of law. ” It is further provided that the president may suspend, “in whole or in part,” the fundamental rights set forth in specified articles. Herein lies the explanation of a recent dispatch from Berlin: “Once more Germany is under martial law, this time by order of the president, who . . . has
suspended all civic liberties.”
Many provisions deal with education, the church, and the family. For instance, all private schools must be licensed and some types are forbidden altogether. The right of private property is guaranteed, as well as the right of inheritance in accordance with the civil law. The constitution sets up in article 165 an elaborate system of workers’ councils ranging from small, local groups to a national economic council which has the right to recommend legislation to the national cabinet
[May
and assembly, sending advocates to plead in person before the national assembly. This paralleling of the political organization by an economic organization is perhaps the most significant provision of the document. The storming of the Reichstag some weeks ago was incident to the debate on the factory council’s bill introduced by the national economic council.
Of particular interest to the readers of the National Municipal Review will be the specific references to municipalities. In article 17 it is provided that the principles of proportional representation shall apply also to municipal elections. A residence qualification may be imposed by a state law. In article 127, it is stated that “municipalities and unions of municipalities have the right of self-government within the limits of law”—a suggestion taken from recent municipal home-rule movements in this country. In the rather elaborate provisions relating to the schools the constitution stipulates that while “the entire school system is under the supervision of the state, it may grant a share therein to the municipalities.”
An English translation of the whole document, with a historical introduction, has been prepared by Professors W. B. Munro and Arthur N. Holcombe of Harvard University. It is published by the World Peace Foundation, 40 Mount Vernon Street, Boston, from whom copies may be obtained on application.


THE OPERATION OF THE CITY-MANAGER PLAN IN WICHITA
BY A. A. LONG University of Kansas
In our series of subjects of city-manager plan studies Wichita, Kansas, occupies an interesting place because it is the leading case of a city that has changed from the commission plan. :: :: :: ::
i
When the commission form of government, which operated from 1910 to 1917, failed to rid the city of political corruption and inefficient management, there arose in Wichita, Kansas, a demand for the city-manager plan. The recall of a commissioner and the election of a successor even less desirable than the man who had been recalled demonstrated conclusively that the control and operation of the municipal government had not been removed from the damaging influence of unscrupulous factions and groups. Even the workings of the commission itself were featured by wire-pulling and political chicanery.
In the face of this evidence, the people of Wichita, led by a few spirited citizens, determined to clean house. Accordingly, during the first months of 1917, a bill was prepared and presented to the state legislature—then in session —to permit Kansas cities to adopt the city-manager plan by engrafting it upon the old commission framework. The bill became a law, and Wichita was the first city to take advantage of the provisions of the act. At a special election held on the 9th day of March, 1917, 5,551 votes were cast for and 3,473 against the adoption of the manager plan.
Since the state law is somewhat vague in its terms granting to the city
manager the right to appoint department heads, a supplemental ordinance was passed giving the city manager of Wichita full and complete power to appoint and discharge department heads.
n
At the first regular election under the provisions of the new law, Mr. L. W. Clapp, a prominent citizen, was chosen commissioner with a big plurality over any one of the four other commissioners elected, and he was immediately made mayor by the commission.
The first commission was made up of business men who were also leaders in the community, and well known for their success in private life.
Wichita was strongly influenced by the experience of Dayton with the city-manager plan, and this influence is reflected in the selection of a city manager . The Wichita board looked about for an engineer who could fill the position, probably because Mr. Waite was an engineer. The first regularly appointed city manager, Mr. L. It. Ash of Kansas City, Missouri, was chosen on his record as a successful construction engineer. He was employed at a salary of $10,000 a year.
The first act under the new regime was the overhauling of the city hall, which was a typical example of high ceilings and empty court chambers. It was converted into a modern office
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building, giving almost twice as much floor space, and allowing for a much more practical arrangement of offices.
In like manner, a reorganization of the entire city administration followed. The police system was placed in charge of a chief from an out-of-state city—an appointment that furnished food for no little “home rule” talk. But the new chief gave the city its first effective police system, and the reorganization of the police force broke up the rendezvous of the gang element and undermined the power of the former political ring.
In fact, the old political assemblage was completely replaced by a working organization in which there was comparatively little lost motion.
Careful attention was given to the subject of public improvements during the incumbency of Mr. Ash. However, the details of the engineering problems were left almost entirely with the city engineer; and Mr. Ash himself merely consulted with the engineer on the more important matters and gave detailed advice on questions giving rise to dispute and litigation.
The construction of a big storm sewer was one of the things about which the opposition created a great deal of disturbance. Bids were advertised for on the sewer improvements to be installed, but no contractor’s bid came within $100,000 of the city engineer’s estimate. After a failure to close a contract, the city undertook to do the construction work on a cost-plus basis. The opposition attacked the legality of the proceeding; but the city won out on the question of legality, and at the same time saved the property owners $100,000 on the project.
Business methods marked the Ash administration from beginning to end. Mr. Ash himself was an untiring worker, and he was not given to courting public favor or giving extended con-
[May
sideration to a question for the sole purpose of soothing someone’s feelings. His was a process of firing a series of questions at a complainant, securing the desired information, and then and there handing down a decision that was final. And it may be said to his credit that his decisions were usually correct, even though he often acted hastily.
However, if Mr. Ash had been more considerate of the feelings of the public, he doubtless would have left a much more favorable impression with a great number of people who did not understand his rapid fire methods and became incensed at what was considered an uncourteous attitude on the part of a public official. The people of Wichita, like other free Americans, were accustomed to dealing with the public official who is more concerned with his tenure of office than with the business-like discharge of his public duties. Yet, as a matter of fact, the people of Wichita are learning to appreciate their business-like government, and even many former stand-patters would be loathe to exchange the new order for the old.
hi
The election of the spring of 1919 gave the opposition a chance to come back. Their first plea was that Wichita should choose a home man as city manager unless one could be secured who had had several years’ experience in a similar position.
The opposition contended that surely the city could find enough “guns” within her own bounds of sufficient calibre to fill any position; for even the governor of the state had been selected from Wichita.
Another claim to the effect that labor should have a representative on the commission was heard. The labor


CITY-MANAGER PLAN IN WICHITA
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1920]
issue was probably originated by the “home rulers,” but it was astutely placed in the hands of the labor organizations for nourishment.
The home rule element experienced difficulty in securing a candidate, especially a radical one, so they combined with the “laborites” and centered on one man who was designated the “labor candidate.” He secured the highest number of votes, although he was not avowedly opposed to the old regime and afterwards proved himself to be a very congenial worker with the other commissioners. MayorClapp, who had supported the Ash administration at every turn, was given second to last place in the number of votes received in the election. Every commissioner, except one who was not a candidate, was re-elected.
The total number of votes cast in the election was small compared with the possible voting population; the small vote was largely due to the fact that the community leaders did not take the claims of the opposition seriously and were confident of an easy victory at the polls.
Upon the organization of the commission after the spring election of 1919, Mr. Clapp was re-elected mayor, and Mr. Ash was reappointed city manager.
Mr. Ash had tendered his resignation just before the election, but it was only after much urging and insistence on his part that the resignation was accepted on October 1,1919, when Mr. Ash was finally relieved of his duties. Mr. Ash based his reason for resignation upon the ground that he could not financially afford to hold the position and give up his work in the private construction company of which he is a member.
For several months before the final resignation of Mr. Ash, the commission made every effort to secure a new city
manager who was trained in the general field of municipal work. Engineering ability was not enumerated as one of the requirements for the position. After a rather lengthy search, during which the commission failed to find a suitable man at the salary offered, Mayor Clapp resigned to accept the position of city manager himself. Mr. Clapp voluntarily reduced his salary to $6,000, with the understanding that the remaining $4,000 which would have been his, be used in the employment of an assistant city manager at $3,000 a year, and in raising the salary of one of the department heads.
The new city manager is a graduate of one of our best eastern colleges. He is a man of mature years, and is experienced in matters of finance and big business. He is thoroughly versed in accounting and budget making; yet he is sufficiently liberal in training and views to appreciate the importance of every recognized field of municipal activity. He is deliberate, thorough, and well-balanced. He is accessible, genial, and courteous. Mr. Clapp has more time than his predecessor had for consideration of complaints and questions of policy; for the assistant manager, Mr. F. W. Sefton, is a master of the details connected with the operation of the office, and he is always at his post.
City Manager Clapp is a “home man” and has the direct interest of the city at heart. He is independently wealthy, and is actually assuming the responsibility of the managership chiefly for the purpose of promoting the welfare of the community.
There seems to be an understanding that Mr. Clapp will not continue as city manager indefinitely, but that as soon as some of the serious problems now confronting the city are cleared up, and a suitable successor can be found, he will give up the position.


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IV
At the time of the adoption of the manager form of government in 1917, the city of Wichita was bonded in the sum of $1,400,000, and to-day its outstanding indebtedness is $1,300,000, notwithstanding an expenditure of a normal amount for public improvements, and of $200,000 for the construction of a new forum building. The tax rate has remained at the same figure of 7.8 mills since 1917, despite the general increase in operation costs. The valuation of taxable property has increased from $65,807,214 in 1917 to $88,764,934 in 1919.
The city of Wichita is confronted with some complex public-utility problems. Not a single public service is operated by the municipality. The gas situation is unsettled, and has been the source of much concern.
Five cents is still the price one pays for a street car ride in Wichita, and one also pays only five cents in a jitney or motor bus. The service of the two combined is fairly good compared with the present transportation accommodations in our American cities; yet the street railway problem is demanding more than passing consideration.
The water-works system is also coming in for its share of attention, and there is talk of a possible purchase of the water works by the city.
The publicity feature has had a very important bearing on the experience of Wichita with the city-manager plan. The administration has never, apparently, given the question of publicity the place of importance it deserves—a failing which is certainly not peculiar to the city of Wichita. It was the feeling of Mr. Ash that a great deal of noise made by the opposition would never have had a hearing if the real truth of the conduct of affairs had been known. At the same time there is no
[May
evidence that the administration made a special effort to furnish the local papers with news concerning the numerous accomplishments of the municipal government. As a result, a great deal of “hearsay” and “presumption” found space in the news columns. The general dissemination of information about the work of the city has been left almost entirely to the two daily newspapers. Evidently few chances to air the maladministration of affairs have been passed up by the reporters. The opposition certainly cannot ascribe its defeat to lack of publicity.
While the liberal policy of the papers in publishing notes on municipal affairs has served to keep up community interest at home, it has unfortunately created an erroneous impression in many quarters that the city manager experiment has been somewhat disappointing in the city of Wichita. Yet if we are to accept the audit of the substantial citizenship of the town, the experiment has proved very satisfactory.
The civic consciousness of the city of Wichita presents an unusual situation. The public has learned to think in its peculiar manner. Public thought runs at high tension, accentuated by the presence of a number of civic and commercial organizations working more or less independently. There is not, in Wichita, a central chamber of commerce, or any other one similar organization that can be said to represent the public spirit and civic body of Wichita as a whole. But the factionalism of the city is geographical rather than political. In a case involving a consequential public question, the well-directed civic and commercial agencies are wont to combine and tide the city over the emergency.
Wichita has grown rather rapidly during the past five years from a city of 53,582 in 1915 to a city of an estimated population of 70,000 in 1920. This


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1920] BEHIND SCENES WITH FIVE STATE BUDGETS
rapid growth has been due in a large part to the oil industry. There has always been a big transient population in the city, which fluctuates according to the oil development. Nevertheless, there seems to be a sufficient number of
good substantial citizens to insure the continued stability of the municipal government, and the indications are that Wichita will henceforth enjoy a period of efficient administration in its public affairs.
BEHIND THE SCENES WITH FIVE STATE
BUDGETS
BY B. E. ARTHUR
A budget system may be one thing in law and quite another in practice.
The budget laws of all the states we described in the August, 1919, issue.
This article tells with a surprising frankness how they work. :: ::
Budget System! Rather common phrase nowadays. One sees it almost daily in the newspapers. Congressmen, governors, legislators, mayors and housewives are talking about it. Mrs. Smith operates her household on the budget system. Numerous cities are using it. Seven-eighths of the states have adopted it. Congress is figuring on it.
Among the states three general types of budgetary procedure, differing mainly in the location of initial responsibility for the budget, have been developed. These are the “executive type,” when the governor is responsible for the budget proposals; the “commission type,” when a board composed of administrative, or administrative and legislative, officers is responsible for the budget recommendations; and the “legislative type,” when the budget proposals originate in legislative committees. Advocates of budget reform throughout the country have generally agreed that the executive type is capable of operating more effectively than the other two types and is for this reason the farthest advance in budgetary procedure. In fact, one half of the states adopting
budget methods have expressed a preference for the executive type and have incorporated procedure to that end in their budget amendments and laws.
In practice, however, the executive type of budget has in nearly every state either fallen far short of what it was intended to accomplish or has reverted to one of the other types.
Impossible, you may say!
But read the following episodes based upon the actual experiences of several of those states operating under the executive type of budget.
NEW JERSEY
About ten years ago a newspaper man came to Trenton as a member of the New Jersey legislature. It was his first venture in “politics,” and he liked it. As a newspaper manager he was regarded a success, but he had a sneaking notion that he might be even more of a success as governor. However, to aspire to that office he must do something to distinguish himself among his “fellow citizens.” The financial reports showed that an unsatisfactory condition existed in the state which


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was gradually growing worse instead of better. Here was his opportunity to make a reputation; he would advocate the adoption of a budget system and other business methods. To this end he said much about regarding the governor as the state’s “business manager,” and proposed in 1916 a bill authorizing the governor to prepare and present the budget to the legislature. This bill was duly enacted into law.
The governor, then in office, belonged to the party in opposition to that of the sponsor of the budget law. His term of office did not expire until during the next regular session of the legislature following the one at which the budget law was enacted. In the meantime, the opportunity came to the champion of the budget system to become candidate for governor. He ran and was elected mainly upon the strength of having fathered budget reform in the state, although the scheme was yet untried.
As oftentimes happens in the best laid schemes, the budget law contained, perhaps inadvertently on the part of the author, a provision which worked practically the undoing of the whole project. The budget was to be prepared by the governor and presented to the legislature at the beginning of each regular session. That is, the outgoing administration was to make up the budget for the in-coming administration—the retiring governor was to prepare the budget for the new “business manager,” the governor-elect. Although the old governor was without the necessary information properly to prepare the budget and did not care to perform the task in the closing days of his administration, he nevertheless did it mainly because it offered a splendid opportunity for him to concoct a pill for the opposing party and the new administration. He found certain satisfaction in showing up the much-
[May
lauded budget reform! When the governor-elect came into office he informed the legislature (in which his party was in the majority) that he objected to taking the financial prescription proposed by the retiring governor. The result was that the legislature discarded the old governor’s proposals and prepared a bill authorizing expenditures in accord with the wishes of the majority party in the legislature. This bill the new governor approved. While admitting that the budget system did not work as effectively as it might have if the governor had been in agreement with the majority party of the legislature, he nevertheless regarded it as a great step forward in the state’s financial procedure. Certainly the legislature could not be blamed for rejecting such recommendations as the retiring governor had made! Just wait until he had an opportunity to prepare the budget and then the people would see it work effectively!
In due season the opportunity came, but in the meantime new political aspirations had seized the attention of the “business-manager” governor. While the law required him to prepare and submit the budget to the legislature, he did not care to be solely responsible at that time for deciding several important issues in the spending program of the state. In his day dreams he saw the national capitol arise before him. He must not do anything, he must not make any financial recommendations that would keep him from realizing this dream! He must devise some means of shifting or diffusing the responsibility and at the same time of enabling him to present a budget to the legislature that would forestall any annoying criticisms on the part of that body. This was his scheme: he appointed a committee, composed of a few of the leading legislators who had served on the joint appropriations com-


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mittee and who would be members of the next legislature. This committee, together with two administrative officers appointed by the legislature, sat with him in the review of the estimates and assisted him in the preparation of the budget. The budget recommendations, as submitted to the legislature, were the result of a compromise of opinions and interests. When the budget was presented to the legislature it was referred to the joint appropriations committee, the most influential members of which had concurred with the governor in the financial recommendations which it contained. Only a few changes were made in the proposed appropriations; all interests had apparently been satisfied in the making up of the budget. There was no discussion or criticism of the budget plan in the legislature. None seemed necessary; the possibility of criticism had been practically eliminated by previous agreement. The budget was adopted by the legislature as it had been proposed. Forthwith the governor proclaimed it a great triumph for the “executive budget” principle. The sequel was the early realization of his dream—a seat in one of the marble hails of the national capitol. And so “men rise on stepping stones of budget systems to higher things.”
For New Jersey the executive type of budget has reverted to the commission type in which members, or representatives, of the legislature control the preparation of the budget. Responsibility for the budget plan is not fixed. The legislative practices and procedure remain practically the same as before the adoption of the budget law.
MARYLAND
In 1915 Maryland had a million-dollar deficit in her treasury brought about mainly through the uncontrolled
action of the legislature in passing appropriation measures. A commission was appointed to study the financial situation, and after investigation recommended the adoption of a budget system. As a result of this recommendation a budgetary procedure was written into the constitution,—Maryland being the first state in the Union to make such procedure a part of its organic law. Under the provisions of this amendment the governor is required to prepare the budget and to embody his proposals for appropriations in a bill. When these documents are submitted to the legislature it must act upon the governor’s bill before considering any other appropriation measures. It can only strike out or reduce items in the governor’s bill, and cannot initiate appropriation measures except they are limited to a single object and carry the revenue to meet the proposed expenditure. The governor is permitted with the consent of the legislature to amend or supplement his bill after it has been submitted to that body.
How did this procedure work out? When it came to preparing the first budget the governor was in a quandary; he was without adequate information or necessary help to prepare the budget. The administrative organization was so decentralized as to place him in a position where he had practically no control over the sources of budget information. No provisions had been made for a staff or even for the employment of a single budget assistant. Fortunately, the governor was not without experience in the financial affairs of the state government, since he had been comptroller preceding his election as governor. In casting about for help to put the budget documents in shape for the legislature, he was able to engage the services of a single person who began assisting him about six


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weeks prior to the date set by the constitution for submitting the budget to the legislature. During this time the estimates were gathered, hearings were held, the estimate data were checked up, the budget was compiled, and the bill containing the governor’s expenditure recommendations was prepared. The information upon which the budget recommendations were based was not only unsatisfactory owing to its meagerness, but in a number of instances was inaccurate and even misleading; and there was no time to check it up by field investigations. As the day drew nearer for the presentation of the budget to the legislature, there was an increasing evidence of feverish haste in the executive office. Finally, the completed documents went to the printer about forty-eight hours before they were due to be presented to the legislature. It was impossible to print them in that length of time, so the legislature rather reluctantly agreed to extend the time for submission one week. The governor heaved a sigh of relief! At the end of this extended period the budget documents were printed and submitted to the presiding officer of each house who referred them to the appropriation committees.
As in preceding years numerous requests for appropriations Were filed with the appropriation committees. Many of these the committees felt should be allowed. But how were they to do it? Each item would require a special act which must carry the revenue to meet it, unless provision could be made to include it in the governor’s bill. To pass a lot of small appropriation bills each imposing a fraction of a mill tax upon the property of the state would embarrass the members of the legislature. These items must be included, if possible, in the governor’s bill! The committees could not increase or add new items to this bill,
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but the governor had the power to amend it. This offered a solution; so they confronted the governor with the matter. They told him that his estimate of the anticipated revenues was conservative and that he might easily increase his proposed expenditures.
To add to the governor’s embarrassment some of the independent departments and agencies of the administration, not being satisfied with his budget allowances, went over his head and laid their complaints before the members of the appropriation committees. What could the governor do? He did not have the authority to forbid such action. As is to be expected, these departments and agencies found supporters in the legislature who demanded of the governor that he revise their budget allowances. Since he needed the political support of these members of the legislature he yielded to their demands and amended his budget recommendations by submitting two supplementary budgets to the legislature. Thereupon the legislature passed the governor’s bill. It was satisfied with the bill, since he had met its demands and at the same time saved it the embarrassment of having to resort to the passage of supplementary appropriation bills which would have imposed additional taxes on the people.
But this was not all. There were a few bills appropriating for local purposes which needed to be taken care of. Again the legislature did not propose to levy special taxes for these purposes. So a ruling was secured from the attorney general to the effect that there would be no violation of the budget amendment if such appropriations were paid out of the balance in the general fund remaining in the treasury at the beginning of the period covered by the governor’s budget. In this way these bills were met without the laying of special taxes. Just what


1920] BEHIND SCENES WITH FIVE STATE BUDGETS 283
expedients the legislature may use in the future in getting around this constitutional restriction remains to be seen.
But our story does not end here. Why should it? Is not the carrying into effect of a financial plan as important, if not more important, than the making of it? The money appropriated must be expended for services and supplies, and these must be made to achieve results if the budget plan is to be carried out. Undoubtedly the governor is the one individual to have supervising control over the execution of the plan. While the Maryland budget amendment requires the governor to prepare the spending plan, it does not place him in any better position than he was before the adoption of the amendment for effectively carrying out this plan. The administration is in the same chaotic condition, and administrative authority is by no means centralized in the governor. He is still merely one of a number of governors, each one directing work and making expenditures independently of the other. There is no central administrative agency to check up the results and thereby currently to gather the information needed in the preparation of the budget. In short, the expenditure procedure remains the same as before the budget system was adopted; contracts are let, purchases are made, services are employed as before without any central supervision or control.
When the governor got his budget recommendations approved by the legislature he went back to the routine work of his office as though all budget problems had been settled until the next session of the legislature came around. He concerned himself very little with expenditures outside of his own office. It was left to the comp-troller’sfoffice to exercise control over the expenditures of the numerous ad-
ministrative agencies by a sort of postmortem examination. The character of services rendered, the quality of supplies procured, the results finally achieved were never taken into consideration; only the question of whether or not the expenditures had been made in accordance with the provisions of the appropriation act was considered. The governor’s office made no attempt to gather information with reference to the expenditures, the revenues and the work of the various state agencies to be used in the preparation of the next budget. In fact, it was not equipped for this purpose. Furthermore, the governor did not expect to succeed himself in office; the next budget would be prepared by his successor. Why should he trouble himself to gather budget information for the next governor? If the legislature expected him continuously to bring together information to be used in preparing the budget, it should have provided him with a sta,ff. The new governor would have thirty days after his inauguration in which to prepare the budget; he could “dig up” the information he needed during this time.
In due time the new governor was elected. Again it was fortunate for the state that a man was chosen for this office who had previously filled an important state office and who knew considerably about the financial needs of the government. Had he come up “green and untutored” from an agrarian section of the state, as sometimes happens in the choice of a governor, it would have been an absurd situation— a month in which to prepare the budget without any knowledge of the subject, without the necessary information and without the proper assistance! Of little avail under such circumstances would be the most profound knowledge of the propensities of a gray mule or the habits of a summer squash! The


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new governor was inaugurated the week after the legislature met in regular session. He had thirty days under the provision of the budget amendment in which to prepare the budget and present it to the legislature. Immediately he put his clerks to ransacking the executive office records, but they were found to be almost as devoid of budget information as Mother Hubbard’s cupboard of canine provisions. A few estimates were coming in each day from the various spending agencies. With the meager information contained on the estimate sheets and with the help of his office force, or whatever temporary assistance he might be able to secure, he was required to prepare within thirty days the state budget covering a period of two years and involving a total expenditure of almost twenty-eight million dollars! Almost an impossible situation to be in, but he did it and did it creditably well. Under the same circumstances perhaps nine governors in ten would have failed.
Obviously, several things are needed to make the Maryland budgetary procedure work effectively. To enable the governor to prepare the budget he should have a permanent staff working under his direction and engaged in gathering budget information throughout the year. In budget making, future needs are determined largely upon the basis of past experience. The administrative organization should be changed so as to centralize executive control in the governor; without this the governor is not the real executive of the state and cannot speak to the legislature as the final authority on budget matters. As long as the state government is composed of a hundred more or less independent units and agencies, each practically free to importune the legislature for appropriations, some way will be found to grant
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their requests although the power to initiate appropriation bills drawing directly upon present or anticipated funds of the state treasury may be denied to the legislature. Anyhow, the legislature cannot be completely deprived of its power to determine policy; and so long as it enjoys the exercise of this power it can enact laws that will involve the expenditure of money without any direct appropriations being made. The effect is the same. What is needed is control established through responsible channels, and this control should be brought about by positive rather than by negative action.
OHIO
The Ohio budget law, enacted in 1913, requires the governor to present the budget to the legislature. The governor has a budget commissioner, employed the year around to assist him in the preparation of the budget. So far, very good, but for constitutional reasons the budget law does not prescribe any procedure to be followed by the legislature in handling the governor’s budget. Naturally, the legislature employs the same procedure that it used before the adoption of the budget methods.
What happens to the governor’s budget when it is submitted to the legislature and how does that body consider it? There is an appropriation committee in each house to which the governor’s budget is referred when it is submitted. Besides the appropriation committees, there are two committees in each house concerned with the raising of revenues and the settling of claims. These six committees, acting independently of each other, are charged with the consideration of the complete expenditure and revenue programs of the state. Each proceeds to report out bills and to make


1920] BEHIND SCENES WITH
recommendations to their respective houses without co-operation and with very little knowledge of what the others are doing.
The personnel and work of one of the appropriation committees of a recent session is interesting. It was composed of fifteen members, three of whom had been members of the committee during the preceding session of the legislature. By profession there was a veterinarian, a farmer, a florist, two lawyers, an apiarist, a merchant, a pharmacist, a real estate agent, a broker, an insurance agent, an automobile dealer, an electrician, a dentist, and a dog fancier. How eminently fitted by experience and general qualifications for the work in hand! This committee was to determine for the next fiscal period, and perhaps for many years beyond that, the expenditure policy of the state. So with a show of gravity it proceeded to the task set before it. The “horse doctor” was made chairman of the committee. He instructed the committee’s clerk to inform the institutions over the state that the august body—the appropriations and finance committee of the house—was about to make its usual round of visits to determine appropriation needs. An itinerary of the junket was carefully made out, the time allotted to the inspection of each institution depending largely upon its past reputation for serving refreshments. The quality of the reception—fatted calf, Havana cigars, and good stories— usually indicated the extent to which the institutional head thought he ought to have an increase in his appropriations. Perhaps the institutional head did not care to present his claims in this manner, but he must “do as Rome does.” If the committee spent two and one-half hours at an institution, it would put in two hours eating, smoking and telling yarns, and the remaining
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half hour looking around the plant. Thirty minutes each biennium spent in surveying the expenditure needs of a million dollar institution by a committee of such eminent qualifications! The junkets concluded, the committee returned to the capitol and held a few hearings at which certain individuals appeared who did not think they had been treated fairly by the governor in making his budget allowances. A general appropriation bill was then drafted embodying such of the governor’s recommendations as the committee saw fit to include and whatever other expenditures seemed necessary as a matter of political expediency. This bill was introduced during the final week of the legislative session; it was jammed through the house without any debate and sent to the senate. Here it was referred to the senate finance committee, which looked over it with a critical eye and not finding provisions for appropriations to some of the things deemed “necessary to the welfare of the state” proceeded to amend it. The bill was reported out and passed the senate with amendments. Thereupon it was sent back to the house which refused to concur in the amendments. Something had to be done immediately, as it was the last day of the session. A conference committee was appointed and after a hasty session the bill was revised to include practically all of the claims of both appropriation committees. In this form it was accepted by both houses of the legislature just as the hands of the clock approached the hour set for final adjournment.
During the last week of the legislative session a score of bills carrying special appropriations amounting to several millions were passed by the legislature. These, together with the general appropriation bill, and a sundry claims bill were sent to the gov-


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ernor. Nobody knew what the total appropriations would be until the governor had approved all bills, which he did not have to do until ten days after the adjournment of the legislature. Yet the taxation committees of the two houses prepared measures designed to raise revenues to meet expenditures the total of which was unknown at the time the revenue measures were passed by the legislature.
What was the result? The budget plan of the governor was destroyed by the independent action of the six committees and the archaic and unbusinesslike procedure of the legislature. Obviously, if the bicameral system is to be continued in our state legislatures, there ought to be a joint committee of the two houses which would be charged with the consideration of both revenues and expenditure needs, and this committee ought to be composed of men who have had some experience in financial matters—who are not merely dog trainers or horse doctors. The procedure of the legislature should be such as to insure publicity in financial matters and the orderly handling of all revenue and appropriation measures. Finally, the administration ought to be so organized as to give the governor control over the agencies expending the appropriations that he may be able to carry out the budget program.
MASSACHUSETTS
The people of Massachusetts, after a hard-fought struggle for improved financial methods and procedure, adopted in 1918aconstitutional amendment providing a budgetary procedure which was designed to place squarely upon the governor the responsibility for the preparation and initiation of the budget. The administration was reorganized with a view to giving the governor fuller control over it, and the governor was furnished with a staff
[May
agency to assist him in the preparation of the budget. It seemed that everything had been provided to insure the effective working out of the budget system. That extravagant and irresponsible body—the legislature—was no longer to be in a position to squander the people’s money! The governor, responsible directly to the people, would make up the budget plan and the legislature would O. K. it. Very fine; but listen how the system actually worked out.
The governor gave very little time or attention to the preparation of the financial plan. One clerk of his staff agency was responsible for all the details and most of the policies of the plan. The statement, or message, explaining the 1920 budget was not even written by the governor. He merely wrote a prefatory note of a dozen lines in which his only positive recommendation was that the state tax should not be made to exceed a certain amount. In order that it might not exceed this amount the budget carried a recommendation to divert certain funds in the state treasury, which had originally been raised by bond issues for capital purposes, to the payment of current expenses. Anything to “ get by ” without facing the actual situation and the inevitable increase in the state tax burden! Why? Because of the popular feelings on the subject and the effect this would have upon the political future of the governor. The confidence of the people in his administration must be retained, and the easiest way out was for him to “pass the buck” to the legislature. This he did; and for once the “discredited and extravagant” legislature arose to the occasion, for once it became the “watch dog” of the treasury. It demanded of the governor why he indorsed such budget recommendations. The story got into the newspapers and


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editorials were written on the budget proposals of the governor. At length the attorney-general decided that the governor’s proposal to increase the state’s revenue accruing to the general fund by diverting certain other funds was illegal under the provisions of the constitution. The governor was forced into the corner and compelled to submit a revision of his budget to the legislature. While this document met most of the criticisms of the legislature, it is clear that the governor did not assume leadership, but left the determination of the budget program largely in the hands of the legislature.
How to remedy such a situation, as the above, without merely enduring it to the end of the governor’s term is a nice little problem for speculation on the part of the advocates of the “executive budget.”
VIRGINIA
In all states the governor is known as the “chief executive,” a term which implies full power and authority to control the administrative organization. But in no state is this meaning of the term true. It seems absurd to try to fix responsibility upon the governor for budget-making and for carrying out the financial program when his position is such that he cannot control the organization with which he has to do the work.
The administrative branch of the Virginia state government may be taken as an example of the decentralized and irresponsible organization over which the governor is supposed to exercise supreme executive authority. The governor is elected by the people for a term of four years. The lieutenant governor, secretary of the commonwealth, state treasurer, attorney general, superintendent of public instruction, and commissioner of agricul-
ture are also elected for terms equal to that of the governor. They are practically co-ordinate in power with the governor since they derive their authority from the same source—the people. The auditor of public accounts is elected by a joint vote of the two houses of the legislature for a term of four years. The governor with the approval of the senate appoints a commissioner of state hospitals. Then there is the state board of education, composed of the governor, attorney general, superintendent of public instruction and three members selected by the senate every four years; the board of agriculture and immigration, consisting of one member from each congressional district appointed by the governor with the senate’s approval for four years and the president of the Virginia Polytechnic Institute ex officio; the state corporation commission, composed of three members appointed by the governor with the confirmation of the joint houses of the legislature for overlapping terms of six years each; the board of directors of the state penitentiary, etc., consisting of five members appointed by the governor with the senate’s approval for overlapping terms of five years each; a board of directors for each state hospital made up of three members appointed by the governor with the approval of the senate for overlapping terms of six years; and a general board of directors composed of all of the hospital boards of directors which appoints a superintendent of each hospital. All of the foregoing officers and boards are provided for in the state constitution. Then there are almost a hundred statutory offices, boards, commissions, departments, bureaus and other agencies. The controlling officers of these are in only a few cases wholly responsible to the governor either for their appointment to office or for the conduct of their


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work. The governor has only a very limited power to remove administrative officers. Not only are the administrative agencies widely scattered, but the main functions of government are not co-ordinated. There is much duplication of effort and overlapping of work.
Recently a committee on economy and efficiency was appointed and made a survey of the state government. It reported “general disability” of the government due to chaotic administrative organization, decentralized accounting methods, existence of fee system, and lack of civil service and centralized purchasing. Then it recommended the adoption of a budget system as the remedy. The plan it proposed, in which the governor would be responsible for preparing and submitting the budget to the legislature, was adopted. No definite move has since been made to reorganize the government. Apparently an executive budget system is expected to work under such conditions as now exist in Virginia! Even if the governor were placed in a position to control such a ramshackle administration, he would not be able to secure anything like the proper service from its operation. The working of such a governmental machine will de-
[May
feat the purposes of any system of budget control no matter how well it may have been devised.
* * * * *
What are the general conclusions? An effective budgetary procedure does not result automatically from the mere passage of a law or a constitutional amendment providing for the establishment of such procedure. It is a process depending for its success upon the organization, relationship, personnel and practices of the different units and branches of government. An efficient state budget system cannot be developed in a month or a year, but it is a matter of evolutionary changes in governmental organization, habits and methods. Such a system requires that the state administration be reorganized so as to centralize executive authority and responsibility in the governor; that the committee organization and the procedure of the legislature be changed so as to provide for open consideration and criticism of the budget plan as a whole; and that modern business methods and practices be adopted in the purchase of services and supplies and in the audit and control of expenditures.


HE EXPULSION OF THE SOCIALIST ASSEMBLYMEN AT ALBANY
BY H. W. DODDS
Secretary, National Municipal League
Our new secretary happens to be the leading American authority on legislative procedure. :: :: :: :: :: :: ::
REPRESENTATIVE GOVERNMENT AT ALBANY
It is commonly accepted that violence settles nothing and that the progress of a man has been marked by the substitution of reason for force. Accordingly the development of the state supplanted self-help and private vengeance with a political and judicial machinery for settling civil difficulties. Traces of the ancient blood-feud survive only in modern lynch law, which meets general disapproval. The prime function of early government was to keep the peace and methods were secondary. Clearly at that period government was the dictatorship of a minority. Developing political instincts, however, have given us representative government on a democratic basis. It is true that some deny the democratic nature of modern government, insisting that what we have in fact is a dictatorship of capitalists. To this they would oppose the dictatorship of the proletariat, a return to force and lynch law, to the dictatorship of a minority. But there are other ways of exercising force than by naked violence. All coercion is not physical. For example, those in control of government for the time being, may use the instruments of government as veiled force to serve their own ends. Take the case of John Wilkes. Here was an effort to meet an issue by force.
THE FAMOUS CASE OF JOHN WILKES
George III was determined in his narrow-minded way to exalt the kingly office. By threats, patronage and manipulation of elections he was enabled to subdue Parliament. The subservience of Parliament caused wide discontent and some riots, and the king’s ministers therefore began to assert the supremacy of Parliament against the nation. But the newspaper was coming into influence and the rising press became the court of appeal from a usurping Parliament. John Wilkes, although a member of the House of Commons, made his paper a leader in violent attacks on the secrecy of the proceedings of Parliament. He stoutly maintained the responsibility of members to the country and the right of a free press to publish and criticize their actions. For this he was thrown into jail in 1763 on the charge of seditious libel of the king’s ministers, but he was released under the immunity of a member of Parliament. That body, however, under the spur of the king’s vengeance, branded Wilkes guilty of seditious libel and denied that the privileges of members extended to this offense. Ordered to appear before the House, he fled to Paris, whereupon the House expelled him.
The popular resentment was great and “ Wilkes and Liberty ” became the cry. Five years later he returned and
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was elected again to Parliament. Upon the demand of the king he was again expelled on the old charge. It cannot be doubted that the House of Commons had the legal power to expel members for offense, but seditious libel was a charge cognizable by courts of law. Accordingly the people believed that Wilkes should have been tried by the courts and if guilty punished, but that the action of the House denied him fair trial and was therefore unjust and oppressive. So Wilkes was again elected and again expelled. Declared incapable of being elected, he was immediately elected for the fourth time and had now become the people’s idol. Under such great pressure Parliament was compelled to yield to the right of popular criticism. Wilkes was again elected to the House in 1774 and was admitted. In 1782 the House declared void his earlier expulsion as being “subversive of the rights of the whole body of electors.” To this day the resolution of 1782 stands as a warning against abuse of power by a vindictive body, and the precedent is well established in England that conviction for crime in the courts must precede expulsion by the House on criminal charges. Naturally enough, Wilkes, never an able man, being no longer a martyr, dropped into obscurity, but Parliament’s trial of force had failed, and republican government emerged from the conflict.
JANUARY 7 AT ALBANY
A “trial” has been concluded in Albany which will test severely American theories of representative government, and the outcome cannot help but have a definite bearing upon our ability to work out present problems by political means. On January seventh, after the house had been organized and the officers elected, the speaker
[May
of the New York Assembly suddenly and without warning ordered the sergeant-at-arms to conduct the five Socialist members to the bar of the assembly. The speaker then read an address in which he charged them with belonging to a party disloyal to our government and having been elected on a “platform that is absolutely inimical to the best interests of the state of New York and of the United States.” The men were then allowed to return to their seats, whereupon the majority floor leader introduced a resolution, couched in strong language, asserting that by their membership in the Socialist party of America they had opposed the organized government of the United States, and asking that the matter of their exclusion from the Assembly be referred to the judiciary committee thereafter to be appointed by the speaker. The resolution was accepted as privileged and at once adopted without opportunity for debate. Members who voted in the affirmative criticized later the precipitous procedure which did not permit them to acquaint themselves with the circumstances. After the passage of the resolution the speaker ordered the sergeant-at-arms to conduct the five members out of the Assembly. To them the ceremony was unnecessarily humiliating and was obviously designed to impress all present with their guilt.
THE TRIAL BEFORE THE COMMITTEE
At the beginning of the hearings the chairman of the judiciary committee announced that the defendants would be given a fair trial under the rules of the supreme court of New York. Counsel made clear, however, that in the opinion of the committee the five assemblymen were there “as a matter of grace.” “These gentlemen,” he stated, “are entitled to no representa-


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tion, and this committee itself could go ahead in secret and take testimony and report to the House and upon that report expulsion could be had and no one could complain.” “There is no court,” he continued, “that can question the Assembly’s power or criticize its motives. For the defense to complain that their case was being tried by a committee appointed by the speaker who had instituted the proceedings, that the committee was acting as accuser, judge, and jury, and that the trial could not be fair because of the previously expressed bias of the chairman and committee, was to deny the inherent power of the legislature to pass on the qualifications and eligibility of members. ” In other words the orderly, due process of law by which guilt and liability are usually determined is not binding upon the legislature. Historic, time honored principles of Anglo-Saxon fairness may be disregarded with immunity.
The trial reached its end in March. Some arbitrary rulings on procedure were made by the chairman and much testimony admitted on the subject of socialism, bolshevism, religion, the family, private property, et cetera, which would have been ruled out in a court as hearsay, irrelevant and incompetent. Pleadings were never really joined. The defense was denied the right to make certain admissions in order to narrow the issues; and the obvious conclusion must be that the purpose of the committee was to leave open to witnesses the wide fields of religion, politics and economics in an effort to arouse popular indignation against the doctrine of the socialist members. The original resolution of the Assembly as well as the charges prepared by the committee as the basis of action were general and indefinite and not accompanied by specifications such as would enable the defense to
prepare an answer. It was generally understood around the capitol that this was a drive on socialism which was good politics at present and it was in this atmosphere that all discussions about the church, the family, property, were carried on.
At the end of March, just late enough so that there could not be a new election to fill the vacancies, the committee reported in favor of expulsion and despite a vigorous opposition, led by young Theodore Roosevelt and others, the five Socialists were expelled by a large bi-partisan majority. By waiting until this date the question contingent upon the re-election of the same men was avoided.
THE LEGALITY OF IT
Regarding the legal competence of the legislature, the committee was absolutely right. The power to judge of the eligibility of members is a legislative privilege the exercise of which no court will review, no matter how arbitrary or unjust the action. As far as legal responsibility is concerned the committee could conduct their proceedings in secret under any rules of their choosing. Yet the recent hearings, biased as they were, were a great improvement over the methods followed in contested election cases in some of the trials of qualifications of members of congress. In these matters of prerogative the legislative bodies are a law unto themselves. The principle is that the legislature in the exercise of its necessary functions must be free from control by any outside department of government. It is responsible to the people alone. It is not strange that a soverign body should occasionally become arrogant in the use of summary power and deny the binding force of due process in judicial proceedings, but the courts have consist-


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ently refused to share in the decision of questions of privilege. Historically this is a very ancient doctrine. In the early days the House of Commons maintained its dignity with difficulty. The king tried to keep it a mere ratifying body and to this end his ministers and judges sought to determine the discussions and membership of the House. Privileges such as freedom of speech in Parliament and uncontrolled election of members came only after hard fights. Against the royal prerogative was levied the “Ancient Privilege of the Commons. ” It was a real victory for representative government when Parliament proclaimed that the judges of James I could not exclude Sir Francis Goodwin, having been regularly elected. It is one of the curious developments of history that a principle employed to protect the representatives of the people against coercion and intimidation by an autocratic power should to-day remove them from all legal liability in contesting the expressed will of the voters.
But is it not possible that this power of legislative self protection in the hands of a majority may be turned against the very fundamentals of representative government? Inflated with a sense of power, the majority may use its legal prerogative to eliminate an unwelcome minority. This is one method of “direct action.” James I had the idea. “None,” he said, “shall presume henceforth to meddle with anything concerning our government or deep matters of state. ” And surely his Lord keeper could not have been thinking of the speaker of the New York assembly when he addressed Parliament: “His Majesty’s pleasure is that if you perceive any idle heads that will not strike to hazard their own estates, which will meddle with reforming the church and transforming the
[May
commonwealth and do exhibit any bills to such purpose, that you receive them not until they be viewed and considered by those who it is fitter should consider of such things and can better judge of them. ”
TRYING THE SOCIALIST PARTY
In accordance with the expressed purpose of the judiciary committee, the doctrines of socialism have been given a thorough airing. Although the complaint charged that the Socialist party was a conspiracy to overthrow our government, counsel for the Assembly specifically repudiated the theory that it was incumbent upon a legislative body to await the judgment of the criminal courts before action on its part. For this there is good precedent in congress. The resolution which instituted the proceedings recounts that the Socialist party of America has declared its solidarity with the Soviets of Russia and is thereby pledged to the forcible overthrow of all organized governments now existing; and that members of the party agree to be guided by its constitution and platform and when elected to public office are liable to expulsion for failure to carry out the instruction of the dues paying party organization given by an executive committee made up in whole or in part of aliens. The resolution further accuses the party of disloyalty in the war and inaccurately concludes that as an organization it was convicted of violation of the espionage act. It was, therefore, resolved that members of this party be denied seats in the Assembly pending investigation. In opening the hearings before the judiciary committee, the chairman somewhat amplified these charges. “The Socialist party, ” he said, “proposes to substitute minority for majority rule by force if necessary. The five members in ques-


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tion personally opposed the successful conduct of the war and gave aid and comfort to the enemy.” They are accused also of being engaged with others in a conspiracy “ to subvert the due administration of law and to destroy the right to hold and own property honestly acquired, to weaken the family tie which they count is the seed of capitalism, to destroy the influence of the church and to overturn the whole fabric of a constitutional form of government. ” The catalog is nothing if not complete. Some of the counts could be made the basis of criminal charges. The others were considered relevant because in excluding persons as lacking the qualifications of members it is not necessary to prove criminal conduct. The specific statements of counsel for the committee, as well as the nature of the testimony, reveal that the investigation was intended to touch upon the loyalty of the Socialist party to our form of government and their purpose to overthrow it by parliamentary means if not by violence. The real issue at Albany was whether members of a party which avows a purpose to do all in its power by lawful means to bring about a fundamental change in our economic order are to be disqualified from membership in American representative assemblies. If this question be decided in the negative, the accepted American tradition, that the proper place to attack undesirable party principles is at the polls and that the decision of the ballot shall be final, is destroyed.
THE CONDITION OF SOCIALISM IN AMERICA
It is only natural that many people should be intensely suspicious of the present Socialist party. Its members have passed resolutions and made statements which have been consid-
ered inflammatory and seditious. Although the leaders may have in mind a program of evolution, there has been considerable talk about “revolution” and “mass action,” and some talk about “bullets.” The customary phraseology of so-called scientific socialism, familiar to all students of the subject, suggests the Terror to many normal citizens. For the popular confusion between the program of evolutionary socialism and that offered by the disciples of violence and terror, the leaders of the present Socialist party are much to blame. Sound political judgment would have served them better.
It is generally understood that the present Socialist party is more radical than it was before the war. Following the adoption of the anti-war resolution at the convention in St. Louis, in 1917, the party was deserted by a number of influential names, leaving control to what had formerly been the left wing. This resolution proclaimed the party’s “unalterable opposition to the war just declared by the government of the United States,” and called upon “the workers of all countries to refuse support to their governments in their wars.” The next convention of the party was not held until August, 1919, at which time the pro-war Socialists were read out of the party. “We unreservedly reject, ” reads the manifesto of 1919, “the policy of those Socialists who supported their belligerent capitalist governments on the plea of ‘national defense’ and who entered into demoralizing compacts for so-called civil peace with the exploiters of labor during the war and continued a political alliance with them after the war.” The party on this occasion repudiated the recent Berne conference, at which the moderates tried to revive the Second International, and called for a reconstituted international open to


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the Communists of Russia and Germany but closed to those who had co-operated with bourgeois parties during the war. The minority report of the committee on international relations recommended that the Socialist party join the Third (Moscow) International which met in March, 1919, under the auspices of the Russian Communist party.
The matter of the American party’s allegiance to the Third International at present awaits the referendum vote of the rank and file. To date it has not joined the Third International, although the Assembly committee claimed that by expressing solidarity with the Russian Soviet Republic they had in fact ratified the manifesto of the Third International. Beyond a doubt in the mind of the writer, the Socialist party spiritually inclines to the principles enunciated by the Moscow International, which repudiated the “narrowmindedness, opportunism and revolutionary impotence” of those moderate leaders who are trying to reconstruct international socialism along pre-war lines. Many orthodox Socialists believe that the Third International renounced parliamentary activity although this is denied by some present officials of the party. Its manifesto, however, did introduce a new term, namely the dictatorship of the proletariat. The proletarian state, it asserts, is like every state an organ of suppression but after the opposition of the bourgeoisie is broken, it is gradually absorbed into the working groups; the proletarian dictatorship then disappears and finally the state dies and there is no more class distinction. This is the philosophy of syndicalism and the American socialism of to-day has been strongly influenced by it. The leaders seem to accept the general strike as a political weapon, but it is doubtful if a single person of influence
[May
in the party approves the more violent methods of syndicalism or accepts other means than political action.
THE LEFT
But there are parties in the United States which do advocate violence and bloody war. American socialism has recently undergone a schism with the result that two groups have broken off from the parent party and have formed the Communist party, composed largely of the seven Slavic federations which had helped to make up the older party, and the Communist Labor party respectively. These last two hold frankly to an ultra-revolutionary platform including the dictatorship of the proletariat. They also eagerly accepted the pronouncements of the Moscow International. The platforms of both assert that the class struggle is essentially a political struggle, but ultimate hope seems to rest in the “mass strike,” the use of parliamentarism being “only of secondary importance. ”
Yet when all is said and done there remains a fundamental difference between the Socialists and the Communists. The Socialist party yet accepts parliamentary action as the effective and desirable means of waging the class struggle, while the Communists have repudiated political methods in favor of the dictatorship of the proletariat. In the number of dues paying members, the two Communist parties exceed the Socialist party; and it must be clear to all that if the elected representatives of the latter are denied seats in our legislatures, the Socialists will desert to the Communists who are bent upon duplicating in the United States recent Russian experience. The New York Assembly, in company with large groups of citizens, has confused the programs of the two parties.


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€AN THE LEGISLATURE EXCLUDE ALL SOCIALISTS?
It is still a matter of debate whether a representative body in judging of the eligibility of members can impose qualifications in addition to those appearing in the constitution. The federal constitution reads: “Each House shall be the judge of the elections, returns and qualifications of its own members, ” and “Each House may . . . with
the concurrence of two-thirds expel a member.” Similar provisions occur in most state constitutions although the New York constitution omits mention of the power to expel. Under the doctrine of inherent powers this is a prerogative to be exercised by a simple majority. In the lower house of congress well established precedent holds that a member once admitted to a seat cannot be expelled unless for misconduct subsequent to his election or for offenses which did not become known until after his election. This is the power of self protection which would be normally applied when a member is guilty of continued contempt or physical obstruction of proceedings. A person’s pre-election qualifications to a seat in congress must be questioned, if at all, before the member is sworn in, and on this question a simple majority has power to act. On the other hand, so distinguished a lawyer as Senator Knox argued forcefully before the senate in the Smoot case that a legislative body had no power at all to add to the constitutional qualification of members but that expulsion by two-thirds vote could occur for any cause which affects a member as such. The two-thirds vote he compared to the unanimous decision required in jury trials, the purpose of both being to throw adequate protection about the accused. This was the theory followed by the senate in 1862 in the famous case of
Benjamin Stark, senator-elect from Oregon, whose loyalty to the Union was in doubt. Stark, however, having been admitted to the senate, the motion to expel him failed.
Throughout the Civil War and reconstruction period, the power of congress to exclude regularly elected members on grounds of disloyalty was debated at great length. Numerous representatives from the border states whose loyalty to the north was in doubt appeared for admission. In the Stark case, Senator Harris of New York reported for the judiciary committee as follows: “ I do not understand that it is competent for the senate . . .
to attempt to punish a man for crime or misbehavior antecedent to his election. If this were so the constitution ought to be amended so as to read that the legislature of a state . . . shall
elect ... a senator subject to the advice and consent of the senate. ” During this period the majority in congress believed more or less firmly that loyalty to the Union was a qualification for membership in addition to age, residence and citizenship as required by the constitution. The test oath act was passed in 1862 and subsequent action was based on it. However, it appears from the debates that the legality of extra-constitutional qualification was always in doubt and that this was one reason for the third section of the fourteenth amendment. One purpose was to keep out the southern Democrats, and congress did not feel that the doctrine of inherent powers was equal to the task. Furthermore, the cases of members excluded for disloyalty to the Union did not exceed half a dozen. The established doctrine was that unless it could be shown that the member had given aid to the rebellion by overt acts he could not be denied his seat. Of course, numerous members from southern


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states who engaged in active warfare against the Union or committed open acts of hostility to the government were expelled. The senate refused, however, to expel Senator Powell of Kentucky, who had publicly urged neutrality for his state and had commended the governor for refusal to furnish troops to the north.
Congress has claimed the right to exclude persons guilty of crime, notably the crimes of bribery and polygamy. The crime must be one, however, which affects a person’s capacity to act as a member. Members have also been expelled for bribery, the evidence of which came to light after the oath was administered, but it has been usual for the guilty person to resign and thus end proceedings against him. The recent Berger case involved criminal conviction for disloyalty.
THE TWO MAIN CHABGES
Disregarding certain trivial accusations in the brief against the five Socialists as irrelevant, the material charges in conformity with American precedent exemplified in congressional practice may be boiled down to two. Were the suspended members guilty of disloyalty to the United States or were they guilty of crime, namely of conspiring to overthrow the government by force? It would seem as if the criminal law is adequate to dispose of both charges and that a legislature should not undertake to punish a group or party which cannot be shown to be a criminal conspiracy. The Socialist party falls short of this. Failing to show that the accused are guilty of crime, personal disloyalty must be proved against them; it will not do to accuse a whole party of disloyalty if the members cannot be reached under the espionage law. True, congress during the Civil War held that disloyalty sufficient to
[May
disqualify for membership in that body might fall short of treason, yet it must be overt and open and have given aid and comfort to the enemy. And this power to exclude was only claimed at a time of armed rebellion in the midst of actual hostilities. As a mere matter of precedent the action of congress in 1862 cannot be stretched to cover the brief of the judiciary committee of the New York Assembly. That the leading members are not sure of their ground if the accused were tried in the courts is indicated by their repudiation throughout the hearings of the plan to bring criminal charges against them.
ETHICS—OR LAW?
It is the belief of the present writer that the mere legal irresponsibility of the legislature in matters of privilege in no sense destroys its high moral and political responsibility. Representative government is at bottom a question of ethics and as an institution must be shot through with the spirit of common counsel. This involves the recognition of small and at times personally offensive minorities. In their zeal to scourge heretics, legislatures must remember that democracy is a continual concession to heresy. The fact that the legislature in determining the qualification of members is not subject to judicial review does not mean that it is uncontrolled. In determining the rights of members and of constituencies it must adhere to the great and leading principles of judicial fairness; the spirit and intent of the constitution is binding on the legislature as on any department of government. Especially must this be observed since the same body must usually act as both judge and jury. And a distinguished constitutional lawyer has noted that the abuses of power by Parliament in this connection


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marked the worst period of its dependence and corruption.
The early precedents permitting an elected body to take issue with the honest will of the electors grew up before the representative nature of Parliament was established. Members of Parliament looked upon themselves as officers of government, as they yet possess legally the plenitude of sovereignty. Strict legal theory in England has never accepted the doctrine that power emanates from the people. There the privilege of electing representatives was a conceded and not an inherent right. The prerogatives of members, therefore, gave them rights against their constituents, as well as against the crown. A member persona non grata to the majority might be expelled, which was quite consistent with the close corporation conception of Parliament. Indeed on this ground some members of congress in 1867 favored the expulsion of certain others who, although their loyalty could not be impugned, had opposed the administration during the Civil War. But neither congress nor a state assembly is a club or debating society to pass on the eligibility of members. Burke condemned this tendency in the English Parliament: “If the habit prevails of going beyond the law and superseding the judicature, of carrying offenses real or supposed into legislative bodies who shall establish themselves into courts of criminal equity, all the evils of the Star Chamber are revived.” Criminal equity he describes as a monster in jurisprudence and consists in a liberal construction in determining offenses and a discretionary power in punishing them. “The true end and purpose of that House of Parliament which entertains such a jurisdiction will be destroyed by it. ”
As pointed out by counsel for the Socialists, under the wide jurisdiction
claimed as a matter of right by the New York assembly, a strong and determined minority could take advantage of their momentary control of the house when some of the majority were at dinner or out playing poker and upon some fancied charge expel sufficient of the majority to place the minority in command.
But more serious implications have been discovered by Father Ryan, a sturdy opponent of socialism. “I see quite clearly,” he writes, “that if the five Socialist representatives are expelled from the New York Assembly on the ground that they belong to and avow loyalty to an organization which the autocratic majority regards as ‘inimical to the best interests of the state of New York,’ a bigoted majority, in, say, the legislature of Georgia, may use the action as a precedent to keep out of that body regularly elected members who belong to the Catholic church.” Religious intolerance survives, and the Jesuit doctrine that the civil power is only the secular arm of the church or the syllabus of errors, issued by the Pope in 1864, forbidding anyone to argue that civil law ought to prevail in a contest between church and state, the publication of most of which was forbidden in France, might still provide the occasion for summoning the aid of the state in opposition to a minority religion. Even the senate committee which reported on Smoot’s right to his seat held that his membership in a religious hierarchy that united church and state contrary to the spirit of the constitution was a reason for vacating his seat.
CONCLUSIONS
Our beloved institutions of representative government will not stand tampering with. The alternative to-day is pure republican government or vio-


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lence. As shown above, best American precedent permits of no qualifications for membership in a representative body in addition to those stipulated by the constitution, except the tests of loyalty or freedom from crime. During the turbulent days of the Civil War, even this power was in doubt and congress refused to exclude regularly elected members unless their disloyal acts had been overt and open. Mere sympathy with the rebellion or want of active support of the government were not sufficient. In the words of a congressional committee of 1867: “We believe that in our government the right of representation is so sacred that no man who has been duly elected by the legal voters should be refused a seat on grounds of personal disloyalty unless it has been proved that he has been guilty of such open acts of disloyalty that he cannot honestly and truly take the oath.” If this is good American doctrine, what about the rights of representatives elected by a party
[May
which is but vaguely charged as disloyal? During the hearings before the judiciary committee, Assemblyman Evans, a Democratic member who had campaigned against the Socialists in their home districts, read into the record a dissenting statement which contains some good politics, “The duty and power to disqualify for elective office rests with the people and not with the Assembly. To maintain our form of government we must rely absolutely on the electorate—the majority of the electorate—to send to the assembly men who from our viewpoint are loyal and clean, and we must trust that the majority of the electorate will never fail in this respect. If in that respect the majority of the electorate ever fail, then our government must fail. There is no other alternative.” As our president, Mr. Charles E. Hughes, wrote Speaker Sweet, “Is it not clear that the government cannot be saved at the cost of its own principles? ”


NOTES AND EVENTS
I. GOVERNMENT AND ADMINISTRATION
Proportional Representation in Canada and Ireland.—The cities of Vancouver and Victoria, British Columbia, have both voted to adopt the Hare system of proportional representation for the election of their councils. ' Vancouver, which has a population of about 100,000, is now the largest city on the continent to use the proportional system.
The movement for proportional representation is growing in several of the provinces of Canada. In Manitoba it is to be urged for the election of the members of the provincial parliament from Winnipeg. In Alberta Premier Stewart recently said: "You are asking for proportional representation. Before the next election you will have it.” In Saskatchewan the speech from the throne indicated that the government would soon introduce a bill providing proportional representation for urban municipal elections.
On January 15 the Hare system of proportional representation was used for the first time generally for Irish local elections, no less than 127 Irish municipalities electing their councils or other “authorities” by the Hare system on that day. Before that time only one Irish city, Sligo, had used the new system.
It seems surprising that any election system whatever could give satisfaction to all parties in Ireland at the present time. Yet apparently the Hare system did just that, as is indicated by passages from newspapers representing the Unionist, the Sinn Fein, and the Nationalist parties.
The Hare system of proportional representation is prescribed in the new home rule bill for Ireland, the text of which was made public in England on February 28. The bill prescribes two parliaments, one for southern Ireland, the other for northern Ireland. Under the scheme of districting provided, the number of members elected proportionally from each district is from three to eight. After either parliament has been in existence for three years, it is to have power, according to the bill, to change the system if it desires to do so.
*
New York Adopts Housing Relief Measures.
—Under the spur of public opinion and an 3
emergency message from Governor Smith, the New York legislature has passed a series of eleven laws designed to relieve the housing situation in first-class cities and Westchester county. These measures, which have been approved by the governor, are as follows:
1. Burden of proof that a tenant is objectionable when summary eviction is sought on that ground is shifted to the landlord.
2. Amendment of the so-called Ottinger law so as to provide that where an agreement between landlord and tenant does not specifically mention the duration of the tenancy this shall continue until October 1 following occupancy.
8. Thirty days’ notice instead of twenty by tenants intending to move is required where there is a monthly tenancy agreement.
4. In holdover cases, after there has been default in the payment of taxes or assessments, a tenant may remain, providing he deposits the amount of his rent with the judge or clerk of the court through which an eviction warrant has been served.
5. Where a precept is returnable the court may determine the amount of rent due and render judgment for that amount.
6. Where a landlord has increased his rent more than 25 per cent over what it was in the previous year the tenant may set up as a defense to action for payment of rent that it is " unreasonable, unconscionable, unjust and oppressive,” but the landlord may recover a “reasonable” amount of rent.
7. Section 230 of the real estate law, under which a landlord may recover double penalty from a tenant holding over without his consent, is repealed.
8. A tenant may make application for a stay up to nine months and the judge in his discretion grant it, provided the tenant deposits the amount of his rent and proves to the satisfaction of the court that he has diligently sought to secure suitable premises for himself and family and has failed through no fault of his own.
9. Practice is prescribed and the provisions of the code in summary proceedings harmonized with the new provisions embodied in the relief bills.
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10. The penal law is amended by making it a misdemeanor, punishable by a fine of $1,000 or one year’s imprisonment, or both, for a landlord to deny to a tenant the privilege of “ natural and normal service,” such as heat, water and operation of elevator.
11. The same defense is prescribed in actions for ejectment in the supreme court as has been prescribed for summary proceedings in the municipal courts in rent eviction cases.
*
Home-Rule Decision by Ohio Supreme Court. —In a mandamus suit brought against the commission of publicity and efficiency by the law director of Toledo, the supreme court of the state, in a unanimous opinion, decided that the state legislature has no control over the purpose for which bonds of a municipality may be issued, and that they may only limit the total amount of indebtedness a city may incur. The opinion resulted from a test suit to determine the city’s right to issue bonds against its general credit for the purchase of the street railway system.
While the full text of the decision has not yet been given out, a statement was issued by Chief Justice Nichols giving the gist of the decision. This statement was as follows:
The primary question is whether a municipality, under the constitution and laws of the state, may ineur debts through the issuance of bonds or otherwise for the purpose of acquiring a public utility.
By the provisions of section 4 of article 18 of the constitution as amended in 1912, authority is conferred upon any municipality of the state to acquire any public utility the product or service of which is to be supplied to the municipality or its inhabitants.
The provisions of section 51 of article 18 authorizes any municipality which desires to raise money for such purpose to issue mortgage bonds therefor, and it may issue such bonds beyond the general limit of bonded indebtedness prescribed by law, provided such mortgage bonds issued beyond such general limit of bonded indebtedness shall not impose a liability upon the municipality, but shall be secured only upon the property and revenues of such public utility.
The legislature under authority of section 13 of article 18 may pass upon laws to limit the power of municipalities to levy taxes and secure debts, but it cannot thereby deny the right of a municipality to issue bonds for the proposed purpose, that being expressly authorized by constitutional provisions.
Municipalities of the state are empowered by constitutional provisions to acquire any public utility the product or service of which is to be supplied to the municipality or its inhabitants,
[May
and they may issue bonds to raise money for such purpose, pledging the general credit of the municipality to their payment within the limitations prescribed by the legislature as to amount of indebtedness for local purposes. No legislative grant of power is essential. The issuance of such bonds may be limited or restricted by legislative act, not as to the purpose, but only as to the amount of indebtedness the municipality may incur.
The decision of the court harmonizes with the intent of the framers of Ohio’s constitution in empowering municipalities to acquire, construct, or operate public utilities; but it goes even further than that, and holds that a city may issue general credit bonds for any purpose so long as the total indebtedness is kept within the limit prescribed by the legislature.
*
Constitutional Revision in New Hampshire.— The recent New Hampshire convention to revise the constitution proved a very conservative body, adopting no measures of radical tendencies, and proposing altogether only seven amendments to the present constitution. These provide (1) authority for the legislature to impose a classified, graduated, and progressive income tax; (2) for removing the present constitutional limitation that no pension shall be granted for more than one year at a time; (3) for strengthening the progressive feature of the present inheritance tax, about which there has been some question; (4) for repealing the present constitutional provision allowing conscientious objectors exemption from military duty; (5) for empowering the governor to veto individual items in appropriation bills, but subjecting such action to the same review of the legislature as in the case of other gubernatorial vetoes; (6) for eliminating the words “rightly grounded on evangelical principles ” and “ Protestant" from Article VI of the bill of rights providing for the encouragement of public worship of the deity and the right of electing religious teachers; and (7) for a reduction in the membership of the House of Representatives.
The last is regarded generally as the important resolution of the whole seven. The House of Representatives at present has a minimum and a maximum membership of 300 and 325 respectively. If this amendment is adopted the legislature in 1921 shall make a new apportionment, following the town system as at present, but based upon the average number of ballots cast for presidential electors at the two preceding


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elections. The present representatives of the large towns and cities will be reduced by the provision that three times the number of electors shall be required to give a town or ward a second or third representative as was required for the first. The representation of the smaller towns will, however, be affected almost as much since more towns are to be placed in the classified list. Classified towns are those having less than 600 population, and each is represented in the legislature the proportionate part of time which its population bears to 600. The purpose underlying the proposal to base representation upon actual voters is to stimulate the cities to greater effort to naturalize and Americanize the foreign population.
*
Omaha Acquires Municipal Gas Plant.— Omaha, Nebraska, with a population of about 200,000, is the largest municipality in the United States to try municipal ownership of the gas plant. The question has been under consideration since November, 1907, when a special election was called to submit to the public the question of voting bonds in the amount of $3,500,000. It was defeated, but again in May, 1918, the proposition of acquiring the gas plant by the exercise of eminent domain through a condemnation court was carried. The city of Omaha and the company had appraisals made which were submitted to the condemnation court. In four separate appraisals the values placed upon the property were $3,760,000, $6,281,000, $5,518,000, and $5,570,000. The first of these was made by the city’s appraisers; the other three by appraisers representing the company. These figures represent the depreciated values of the property and include going value.
Early in February, 1920, the condemnation court rendered a decision awarding the gas company $4,500,000 as the value of the property, and on March 20, the city commissioners voted to take over the gas works and its operation at this price. The city commissioners also voted $1,000,000 as working capital for improvements and extensions.
The gas plant will be operated by the municipality under a bi-partisan board of directors with a manager in charge of the property. The same board that now operates the municipal water plant will operate the gas plant. It is anticipated that under the city management the rates will not be increased as has been recently
the case with many privately owned and operated gas plants.
This step in municipal ownership is significant in the light of the fact that Omaha already owns and operates its water plant and ice plant.
*
Proposed Remedies for the Dearth of Jurors. —The committee on courts of the City Club of New York has made a study of the difficulty of obtaining well-qualified jurors in New York county—a difficulty experienced in many places —and has prepared a series of remedial bills which have been approved by the trustees of the club and introduced in the legislature.
These measures may be briefly summarized thus;
(1) Abolishing jury duty exemptions of special jurors.
(2) Abolishing exemptions from duty of election officers.
(3) Abolishing the exemptions from jury duty of clergymen, veterinary surgeons, sheriff’s jurors, and volunteer firemen, and reducing the exemptions of members of the National Guard to five years after honorable discharge.
(4) Reducing the period of yearly residence required in New York county to qualify as jurors.
*
Kansas City Considers “Detroit Plan” of “Ribbon” Wards.—With the avowed purpose of destroying boss domination in Kansas City, Missouri, former Mayor Henry M. Beardsley has proposed the adoption of the “Detroit plan” of ribbon wards, under which the city would be divided into a number of wards (sixteen, as at present) running with substantially parallel lines from the north to the south boundary lines, and containing as nearly as may be the same voting population in each ward.
It is not presumed that a mere change of ward boundaries will correct political evils; but changes can be made that will be exceedingly helpful toward that end. The proposed plan, it is claimed, is of such a kind, because it would break up the wards in which the political machine has been able most securely to develop an organization for controlling elections through fraudulent registration and irregular conduct in receiving and counting the ballots. Under existing law, residents of any ward may serve as election officers in another precinct in the


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[May-
same ward, so that by cutting the wards in long strips, each to include a part of the better residential district as well as a part of the business section, a better choice of election officers would be possible for all the precincts of every ward.
This plan is to be submitted to every civic organization in the city for its approval, and finally submitted to candidates for council for their approval or rejection. It has received the endorsement of the Citizen’s League.
II. JUDICIAL DECISIONS
Gas Rates.—In the case of the Southwestern Gas and Electric Company v. City of Shreveport1 the Circuit Court of Appeals held that the city was not estopped from maintaining a suit to enjoin the charging of increased rates by the gas company, even though it took no action upon learning of the intended increase, but waited until the increased rates had been put into effect. The court held also that where a company held two franchises, one acquired by assignment, it is bound to charge no more than the lowest maximum rate provided in either franchise.
Another interesting gas rate case is that of Selkirk v. Sioux City Cas & Electric Company,1 wherein the supreme court of Iowa decided that under a state law, empowering a city to regulate gas rates, Sioux City had a right to pass an ordinance fixing such rates and repealing all ordinances fixing gas rates previously passed, notwithstanding an ordinance in force at the time fixed such rates and provided that upon acceptance thereof by the gas company it should become a binding contract between the city and the gas company.
*
Removal of a Public Officer.—In an action against a city for salary by its marshall, removed from office by the mayor, the evidence of the marshall as to his conversation with the mayor tended to show that he was removed for political reasons, and not for incompetency, as stated by the charges filed by the mayor in accordance with the charter. The supreme court of Texas, City of Antonio v. Neumam,3 held this was sufficient to sustain a verdict for the marshall. The mayor said “I fired you to put in my own people who helped me to be elected. ”
*
Newsstands as Nuisances.—Although the Buffalo city commission had authorized street-corner newsstands by law, the supreme court of Erie county granted a writ of mandamus against
» 261 Fed. 771.
«176 N. W. 301.
*218S. W. 128.
the commission and street commissioner to remove these newsstands on the ground that they were nuisances as a matter of law, being permanent, unreasonable, and unnecessary encroachments upon the public street. This suit was brought by a taxpayer, and it is doubtless the only way by which such street obstructions can be eliminated.
*
Wheeling Charter.—The supreme court of appeals of West Virginia has recently upheld the validity of the greater Wheeling charter, and declared that the resolution of the city council, and the notice given by it of the election to take in a number of suburban towns as parts of the city, was sufficient to make legal the voting of the people on the proposition, both in the city proper and in the city suburbs.
*
Toledo Car Lines.—Advocates of municipal ownership of public utilities claim to have won a great victory, when the Ohio supreme court recently held that a city may incur debt through the issuance of bonds or otherwise for the purpose of acquiring street railway systems within the city. Chief Justice Nichols gave the following as the court’s line of reasoning: “Municipalities of the state are empowered by constitutional provisions to acquire any public utility, the product or service of which is to be supplied to the municipality or its inhabitants, and they may issue bonds to raise money for such purpose, pledging the general credit of the municipality to their payment within the limits prescribed by the legislature as to the amount of indebtedness for local purposes. No legislative grant of power is essential. The issuance of such bonds may be limited or restricted by legislative act, not as to the purpose, but only as to the amount of indebtedness the municipality may incur.”
*
Street Improvements.—The validity of a number of ordinances for the improvement of Columbus streets was tested recently in the Franklin County courts. The improvements


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were made without petition of property owners, and the ordinances were passed by a vote of less than three-fourths of the city council. The main point involved in the case was whether a city charter, or the general state law with reference to taxation, controls the city council in the improvement of public streets. The court held that notwithstanding the home-rule section of the state constitution, the general state laws upon taxation predominate, and that no city can escape these laws by adopting a charter of different provisions. In this case the council adopted the improving ordinance by a vote of five of its seven members. The state law requires that at least three-fourths of the council shall vote for such a measure before it can be adopted. In view of this fact the court held against the ordinance.
*
Zoning.—The supreme court of Minnesota
in the case of Twin City Building & Investment Company v. Houghton recently decided that apartment houses may be barred from residential districts created by cities of the first class in this state under eminent domain. Justice Holt said: “It is time that courts recognized the esthetic as a factor in life. Beauty and fitness enhance values in public and private structures. But it is not sufficient that the building is fit and proper, standing alone; it should also fit in with surrounding structures to some degree. People are beginning to realize this more than before, and are calling for city planning by which the individual homes may be segregated not only from industrial and mercantile districts, but also from the districts devoted to hotels and apartments. The act in question responds to this call, and should be deemed to provide for a taking for a public purpose. ”
Robert E. Tract.
III. MISCELLANEOUS
Municipal Savings Bank Saves Money for City.—The “municipal savings bank” of Saint Paul (Minnesota), according to a recent statement had deposits totaling $3,635,000 on July 1, 1919, after six years of operation. The "bank” is operated by one clerk. It accepts deposits and issues 4 per cent certificates redeemable on demand and with interest, whether the money has been on deposit a day or a year. For the investment of its deposits the “bank” buys tax certificates and bonds of the city, particularly at times when the city would have to pay high rates for loans through commercial channels. Within the past twelve months the “city bank” has taken $100,000 of 4 J per cent 30-year water bonds, $600,000 of 4i per cent school bonds, and $750,000 of 5 per cent tax levy certificates, which, it is stated, were not commercially marketable at those rates. It is reported that the water-bond transaction alone will save the city $105,000 of interest charges.
*
Municipal Banks in England.—In the early part of 1916 the corporation of Birmingham, England, at the instigation of the lord mayor, promoted a bill in parliament to establish a municipal savings bank. The measure met with considerable opposition from the banking world, and eventually the proposal had to be abandoned. This was not to the liking of Birmingham, and
six months later it succeeded in persuading the government to bring in a measure which became law, and was known as the municipal savings banks (war loan investment) act, 1916. This measure was very unsatisfactory, being full of limitations and restrictions. According to a statement made by the manager of the bank, its privileges were restricted to one class of depositor, namely, employed persons; the savings could only be made through the employer; no savings beyond £200 were permitted; the bank could only run for three months after the war; the money had to be invested through the national debt commissioners; and no sum could be withdrawn over £l without seven days’ notice. Conditions such as these are almost enough to break the heart of any public authority or person interested in thrift.
Despite all these drawbacks the scheme was worked in Birmingham with such success that 35,000 depositors were enrolled, and in three years £350,000 were collected—an achievement the corporation is proud of.
With the signing of the armistice the question arose as to whether all this money should be paid out to depositors, or whether steps should be taken to build up a permanent bank. Eventually the corporation decided to promote a bill for the setting up of a permanent bank with wider powers. Parliamentary assent was given on August 16, 1919, and on September 1, 1919, this bank


304
NATIONAL MUNICIPAL REVIEW
opened its doors to the public, with a head office at the council house and seventeen branches in different parts of the city, some open daily and others on certain evenings. Eight thousand new depositors were enrolled during the first ninety days, and the rate of progress is being maintained.
There are two distinct departments in the bank, a savings bank department and a house purchase department. The former is conducted on lines very similar to trustee savings banks and the Yorkshire penny bank. Any sum from Id. upwards is accepted. Withdrawals up to £30 can be effected at the head office without notice, and at any branch up to £5. The house purchase department follows very closely the procedure of a building society. The advances are limited to depositors, to houses actually built, and to houses within the city. The extent of the advance which can be made is 80 per cent of the market value, and the repayments may be spread over a period of twenty years. In the first three months, upwards of 200 applications were received.
The Birmingham municipal bank is governed by a committee of the council, upon which labor is prominently represented. Its success has led to agitation in Manchester, Bradford, and other cities for the establishment of similar institutions.
*
One-Man Street Cars Barred in Nashville.—
Opposition of labor unions in Nashville, Tennessee, to the operation of one-man street cars in-
[May
duced the city commission to prohibit the use of such cars by the Nashville railway and light company. The measure was passed by a vote of three to two.
Greater economy in operation was the claim made for the one-man system by the company, which predicted that continuance of the two-man cars would force it into bankruptcy. A number of citizens appeared before the commission in favor of the one-man cars, and testified that service was improved by the new cars. Representatives of the labor unions contended that use of the cars was unfair to the employes.
*
National Information Bureau Investigates Organizations Appealing for Funds.—The national information bureau, organized by charitable contributors and leaders in philanthropic work to investigate all national appeals and indorse those which meet certain standards of responsibility and efficiency, has issued an approved list of 123 national philanthropic and civic agencies appealing for a total of $160,000,-000. Adding $176,463,473 for religious organizations which have complied with the standards of the bureau, and $100,000,000 asked for by 34 colleges and universities, makes it apparent that hardly less than $450,000,000 will be needed to pay the total bill for charity, social betterment, and educational purposes in 1920, without taking into account local charities, local church expenses, and taxation for public institutions.
The bureau was compelled to refuse indorsement in more than half its investigations.


CITY MANAGER MOVEMENT
PROGRESS OF MANAGER PLAN IN ONE HUNDRED EIGHTY-FIVE CITIES
BY HARRISON GRAY OTIS1
More than 3,100,000 American citizens are living to-day in towns and cities that have adopted the city-manager plan of government. Until six years ago there were but a dozen small towns in the whole country that had ventured into the limelight by authorizing their councils to appoint the chief administrative officer instead of trusting the ballot box to produce executive efficiency.
To-day there are 180 municipalities in the United States operating under, or pledged to, some type of the manager plan. Of these, 114 have created the position of manager by charter, charter amendment or adoption of optional state laws by popular referendum. Nine more have secured modified manager plans by similar means, while the remaining 57 have officers called managers whose positions and duties are established by local ordinance only. Fifty of these latter are towns of less than 10,000 population.
The record of the growth of the manager plan by years and types follows:
Year in Effect Approved Charter Modified Charter Ordi- nance Only Total
1908 1 1
1912 — — 2 2
1913 5 — 4 9
1914 12 3 5 20
1915 12 3 6 21
1916 14 1 5 20
1917 12 1 3 16
1918 20 1 11 32
1919 20 —. 10 30
1920 (4 mo.) 19 — 10 29
Totals... 114 9 57 180
1 Secretary, City Managers’ Association.
Incidentally, it is worth noting that 26 other towns have tried and discontinued the ordinance-created manager plan. To date, no report is at hand of any city having reverted to its former plan of government after having adopted the manager idea by vote of its citizens. Five Canadian towns employ managers.
Classified as to size, the population figures being estimates:
Plan Over 50,000 20,000 TO 50,000 10,000 TO 20,000 5.000 TO 10.000 Under 5,000 Total
Charter 13 22 24 34 21 114
Mod. Charter . 0 1 3 1 4 9
Ordinance 2 0 5 22 28 57
Totals 15 23 29 57 53 180
ACHIEVEMENT REPORTS
For the past three years the city managers’ association has made an effort to secure definite, concise reports as to how the manager plan is working out in the various cities, what achievements are to its credit, in what way it has permitted improved conditions, how the average citizen looks upon the innovation.
We here present the first of a series of articles which will comprise a report upon the success of the plan. These stories have been gleaned from letters from managers, mayors, chamber of commerce secretaries and business men, from annual city reports, from the press and from interviews. The subject of the first installment is
305


306 NATIONAL MUNICIPAL REVIEW [May
Dixie—Birthplace of the City-Manager Plan. The subjects of subsequent chapters will be
City Managers in and around Ohio. Michigan Manager Municipalities. Texas and Oklahoma Turn to Manager Plan.
Pacific Coast Cities under Manager Government.
Borough, Town and City Managers “Down East.”
Reports from Managers in the Prairie States.
Progress of Manager Movement in Rocky Mountain Region.
I. DIXIE, BIRTHPLACE OF THE CITY MANAGER IDEA
The South has been given first place in discussing the progress of the city-manager movement for several reasons : To Dixie belongs the distinction of appointing the first city manager, of putting into effect the first three commission-manager charters, of having both the largest and smallest cities now operating under this plan. It boasts the state which is credited with having the largest percentage of its population pledged to the plan. Among Dixie managers are the first man to enter the new profession and the one who holds the record of longest continued service in a single city. It was a southern city of 12,000 which adopted its commission-manager charter by a record ratio of 54 to 1, and a neighboring town of 11,000 claims the limelight by having had 522 applicants for the position of city manager.
VIRGINIA
Virginia leads the South. It inaugurated the manager idea by the appointment of Charles E. Ashburner as general manager of Staunton in January, 1908. Mr. Ashburner is now manager at Norfolk, a city whose population is close to 200,000.
At this time, Virginia has 17 towns and cities pledged to the manager plan. Of these 9 have created the position of manager by adoption of the optional law of 1914 or by special charter. The other 8 have passed ordinances creating the office of mana-
ger. One fifth of Virginia’s entire population live in city-manager cities. The cities of Petersburg, Newport News, Lynchburg, and Hampton have voted for the new plan and managers will be appointed during this year.
Progress Supercedes Politics at Norfolk
Norfolk. Population, 200,000. Commission-manager charter effective September, 1918. Charles E. Ashburner, manager, salary, $12,000.
Few cities have faced more serious problems of readjustment than has Norfolk. The population has more than doubled and all branches of municipal activities have been taxed to the utmost, yet the record to the credit of the new plan is an enviable one. Among the high spots are: A deficit reduction of $200,000; $1,500,-000 added public improvements; best paid fire and police departments in the United States, and fire department on two-platoon system; juvenile court established, fourteen playgrounds provided, and teachers’ salaries increased. Surveys have been completed for a $3,000,000 addition to the water works system.
The paving of 43 streets has been authorized and many of the contracts completed. Through co-operation between the city planning commission and the citizens, a street extension project which would ordinarily have cost the city $250,000 has been completed at an expense of $20,000. By plans


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307
1920]
now under way the city will acquire approximately 50 acres of land fronting on deep water valued at $750,000. The cost of this improvement will not exceed $250,000 leaving a net gain of $500,000 and requiring only the construction of a pier to make the whole property available for shipping purposes.
Vying with the material gains noted have been the advances in public welfare and recreation fields. All branches of the welfare department have been unified, a city hospital established, visiting nurses employed, free medical and dental clinics opened and a striking reduction in infant mortality brought about. With the increased playground facilities, the attendance has quadrupled and the benefits enjoyed by grown-ups as well as children. A municipal tennis tournament proved most successful.
A Norfolk editorial sums up the situation: “Having outgrown her old unsteady form of government, Norfolk discarded it and evolved a better one. At last it seems that in one American city at least the playing of politics in municipal government has been abandoned.”
Portsmouth Saves $44,000 First Year
Portsmouth. Population, 80,000. Commission-manager charter effective January, 1917. W. B. Bates appointed manager August, 1917; present salary, $5,000.
During the first year, under the new plan, the city saved $44,000 notwithstanding war conditions. During the second year, with expenses enormously increased, the city about broke even. Annexation of territory increased the population by 15,000 and added property values to the amount of $6,000,-000. The high points of achievement are reported as follows:
The city has purchased for $2,700,-000 a $3,000,000 water system which
supplies three cities, and has contracted for extensions and enlargements amounting to $1,800,000; established a $10,000 asphalt plant; equipped the street cleaning, trash and garbage department at cost of $20,000.
By terms of a lease to the government of the ferry owned by the city and county, the equipment has been doubled and the ultimate income will be greatly increased. A much needed city cemetery has been provided by the purchase of a 113-acre plot.
A complete building code has been enacted and a building inspector appointed to enforce it. Plans to purchase the gas system are being considered. A memorial community house may be erected and the establishment of a civic center to cost approximately $500,000 has been recommended.
Old System Inadequate
Roanoke. Population, 47,350. Commission-manager charter effective September, 1918. William P. Hunter, manager; salary, $4,800.
A letter from the secretary of the Roanoke chamber of commerce contains the following significant paragraph: “We feel that Roanoke is particularly fortunate in that this change was made in 1918, and that our affairs have for the last year been in the hands of five successful, earnest business men. In addition to the tremendous increase in the cost of operation which the city has had to face along with all other business enterprises, there has been the loss of revenue because of prohibition and certain taxes upon railroad rolling stock that have been diverted. In spite of all this, the city has progressed and has kept within its financial limits.
“ Considerable public work has been done, new territory has been annexed and a comprehensive business-like budget for the coming year has been


NATIONAL MUNICIPAL REVIEW [May
308
adopted. The council of five meets each Saturday afternoon at 3 o’clock in public session and any citizen can get respectful hearing and an immediate answer. It is true that time honored political traditions have been violated in the change here, but it is our opinion that our people generally recognize the wisdom of their action.
“We have been careful always and wish to have it understood in this communication, that there has been no criticism intended of the men composing the old form of government in Roanoke. There has been no suspicion of misappropriation of funds or anything of that sort, the whole matter hinging purely upon the inability of the old system to care for the needs of a community such as this.”
A Program of Improvements
Charlottesville. Population, 10,688. Position provided for by ordinances of August, 1913, and January, 1917. Shelton S. Fife, the third manager, was appointed September, 1918; salary, $2,400.
The manager plan has been hampered at Charlottesville by a lack of a proper charter yet concentrating department control in a single office has promoted increased service. During the past year the water, gas and sewer mains have been considerably extended, a concrete mixing plant has been purchased and the city is constructing concrete pavements as rapidly as possible.
Detailed plans for a comprehensive program of improvements have been worked out and a million dollar bond issue will be submitted to the voters in April. The proposed improvements include paving, water, gas and sewer extensions, construction of a municipal memorial building and purchase of motor fire apparatus.
Twelve Years of Success at Staunton
Staunton. Population, 12,000. Staunton originated the idea of employing a city administrator by putting into effect an ordinance creating the position of general manager, January, 1908. The first manager, Charles E. Ashburner, was succeeded January, 1911, by S. D. Holsinger. Mr. Holsinger’s salary is $2,000.
By the merging of offices and making of advantageous contracts, the saving has more than doubled the amount of salary and expenses of the manager’s office. Staunton has found the manager plan so good an investment that there is a strong sentiment at present to improve it by adopting a standard commission-manager charter. Among the advance steps taken may be noted:
Modern accounting methods and budget system;
Centralized purchasing;
Improved procedure of levying and collecting assessments for sewer and paving work;
Metering of water supply;
Preparation of sewer, water, and light maps;
More efficient street paving methods;
Increased sanitation and systematic garbage removal;
Complete motorization of fire department;
Increased beautification and use of public park;
Erection of modern street signs;
Systematic renumbering of buildings and removal of wooden business signs and stationary awnings.
From local reports, it is evident that “the manager idea is permanently established and its success universally conceded.”
Amendment Precedes New Charter
Bristol. Population, 8,500. City-manager plan provided by charter


CITY MANAGER MOVEMENT
309
1920]
amendment effective September, 1919. R. W. Rigsby, manager; salary, $3,000.
Accomplishments under the new plan during the brief period of its operation have been hampered by meager appropriations made by the outgoing council. Perhaps the greatest achievement of the new administration has been the drafting of a complete modern charter to replace the patched-up machinery now in use. This charter will be submitted to the voters soon.
A detailed city map has been completed as a preliminary to a comprehensive city plan. This has been a big undertaking as the city departments have been practically destitute of accurate records. Plans are now in progress for complete sewer and water development A modern accounting department has been installed and purchasing centralized. The progress being made is meeting with strong popular approval.
A Million Dollar Sewage Disposal Plant
Winchester. Population, 6,883. Position of manager created by ordinance May, 1916. Thomas J. Trier, the second manager, succeeded A. M. Field, September, 1918; salary, $2,000.
A recent letter from Winchester advises that the manager form of government is very satisfactory to the public and that there has been a movement on foot to adopt a standard commission-manager charter.
During the past year the city has opened up a stone quarry, which will mean a saving of hundreds of dollars annually. A million dollar sewage disposal plant is nearing completion. The projects now being worked out include the extension of the city limits, survey for a soft water supply, installation of municipal light plant in com-
bination with present water plant and a general extension of sewer and street work.
Another Good, Year at Farmville
Farmville. Population, 4,000. Position of superintendent created by ordinance September, 1915. Leslie Fogus, the second superintendent, was appointed September, 1917; salary, $1,400.
The year 1919 has increased the popularity of the manager plan in Farmville because of the many improvements made possible. During the year the city has constructed 5,000 square yards of concrete paving and three concrete bridges besides building three-fourths of a mile of macadam roadway. Water mains have been extended 3,000 feet, sewer lines 500 feet and electric service furnished to Hampden College, a distance of eight miles.
Other Virginia Cities
Suffolk;. Population, 8,000. Adopted the city-manager plan by charter September, 1919. Richard H. Brinkley, former city engineer at Suffolk, was appointed manager in October; salary, $3,000.
Warrenton. Population, 3,000. Has created the position of manager by ordinance and appointed L. M. Clarkson, March, 1920; salary, $1,800.
Blackstone. Population, 2,000. Provided for the position of general manager by a charter amendment which became effective June 1, 1914. R. B. Stone serves as treasurer, clerk, and general manager; salary, $1,500.
Newport News, population, 37,500; Lynchburg, population, 35,000; Petersburg, population 25,000; Hampton, population 8,000 have all adopted commission-manager charters which go into effect during 1920.


TECHNICAL SUPPLEMENTS
OF THE
National Municipal Review
1. The Assessment of Real Estate
By LAWSON PURDY,
for eleven years President, Dept, of Taxes and Assessments, City of New York; in co-operation with the National Municipal League’s Committee on New Sources of Revenue, Robert Murray Haig, Chairman. Describes the type of organization and principles of administration best adapted to the task of assessing real estate in American municipalities—the mature conclusions of a notable tax administrator. 24 pages.
2. Administrative Consolidation in State
Governments
By A. E. BUCK,
New York Bureau of Municipal Research. Describes exhaustively the consolidations of state offices, boards, and bureaus in Illinois, Idaho, Nebraska, and Massachusetts, and the proposed consolidations in New York and Delaware, and supplies helpful references to the various official reports of eleven states. The only comparative study available on this subject. 32 pages, with diagrams.
3. The Coming of Centralized Purchasing
in State Governments
By A. E. BUCK,
New York Bureau of Municipal Research.
A comparative survey of the purchasing agencies, methods, and procedure in the twelve states where centralization has been instituted. A distinct contribution to the movement to increase efficiency in state purchasing. 24 pages.
Prices of any of these supplements: Single copies, 25 cents 5 copies, $1.00 25 copies, $4.00 100 copies, $15
NATIONAL MUNICIPAL LEAGUE
North American Building PHILADELPHIA, PA.


SUPPLEMENT TO THE
N&tiorval
MuaicipaJ
Review
Vol. IX, No. 5 May, 1920 Total No. 47
ZONING
BY
EDWARD M. BASSETT
of the New York Bar
Counsel of Zoning Committee of the City of New York Former Chairman of Districting Commission of the City of New York
PUBLISHED BY THE
NATIONAL MUNICIPAL LEAGUE
RAILROAD SQUARE, CONCORD, N. H.
EDITORIAL OFFICE, NORTH AMERICAN BUILDING PHILADELPHIA, PA.

Entered as second-class matter April 15,1914, at the post office at Concord, New Hampshire, under the Act of August 24,1912


CONTENTS
PAGE
I. Chaotic conditions in unzoned cities........................ 315
II. Protective efforts before the spread of zoning............. 317
III. What is zoning and how does it protect..................... 318
IV. How to obtain a zoning plan for a city...................... 327
V. Where to get information................. ................. 331
VI. Statement of principles of zoning formulated by the author.. 332
VII. Suggestions for forms of legislative enactments............ 334
VIII. Opinions of the Courts..................................... 336
IX. Statutes and ordinances.................................... 337
X. Bibliography by Miss Theodora Kimball...................... 338




ZONING
I. CHAOTIC CONDITIONS IN TJNZONED CITIES
Five years ago in every large city of our ^country a landowner could put up a building to any height, in any place, of any size, and use it to any purpose, regardless of how much it hurt his neighbors. A few cities had passed ordinances limiting the height of skyscrapers, but these limits were subject to easy change and not part of a comprehensive plan. A few cities limited the height of apartment houses and did not allow them to cover the entire lot. In many cities regulations looking toward zoning were practiced or attempted, but they were usually for chosen sections or to meet local emergencies. Building laws, apart from those applying to fire limits, treated all parts of the city alike whether inside or suburban, whether business centers or residential outskirts. By and large the upbuilding of a city was left to the whim or personal profit of the individual builder and he could do what he wanted to with his own land, even if it hurt the city or the neighborhood.
Skyscrapers would be built to unnecessary height, their cornices projecting into the street and shutting out light and air. The lower floors needed artificial light in the daytime. Business centers instead of being rationally spread out were intensively congested. Transit and street facilities were overwhelmed. In some of the larger cities a landowner in the business district was almost compelled to put up a skyscraper because if he put up a low building, his next neighbor would put up a higher one that would take advantage of his light and air. The first skyscraper that went up in a
315
block would enjoy high rents because of its outlook, but when other buildings went up equally high, its rents would fall. The skyscraper would usually be built to cover the entire lot, with its windows opening on other people’s land. Some eligible lots were hedged in by skyscrapers so that no profitable buildings could be erected upon them and their rightful value was stolen by their skyscraper neighbors. The individual landowner could not be blamed because if he did not take advantage of his neighbor, his neighbor would take advantage of him. Many owners recognized that skyscrapers were less desirable and often less profitable than lower buildings, that the giving up of valuable space to gangs of elevators for different stories lessened the rentable area and that the cost of construction per cubic foot of a skyscraper was vastly greater than of a building of moderate height. Nevertheless the owner, realizing that a fairly low building in the intensive district would be pocketed by skyscrapers, would build a skyscraper himself. If he left any of his lot uncovered, or set back the upper part of his building, his neighbor would take entire advantage of it instead of leaving corresponding openings. The result was that the lack of regulation stimulated each owner to build in the most hurtful manner.
In residential localities high apartments would build out to the street line and their windows would open on the grounds of private residences. A vacant unrestricted lot in a high-class residential district had a high exploitation value. After such a locality was exploited by a dozen apartment houses, the owners of the private residences would begin to move away


316 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
The locality would become depressed and the apartment houses themselves would sometimes find themselves in a blighted district.
Bright business streets would be invaded by factories. When the factory use began to predominate, customers would leave the localities, rents of stores would drop, and some of the most eligible business centers of cities became partly deserted. Fortunes were lost because business would move away from the locality where it would naturally remain if not forced out. Public stables and more latterly public garages would enter the best business and residential districts. A garage costing $25,000 might cause a loss of $100,000 in the surrounding values. Garages did not seek the industrial localities but would crowd into the business and residential districts that they would hurt the most.
Although it was evident that a growing city would more and more need its vacant suburbs for residential purposes, sporadic factories were free to enter these open places. Som etimes nuisance factories would go out half a mile from the city in an open area in order that they might be free from complaints of smoke and fumes. When the city built out toward the factory, the residences would keep at a distance. The factory might occupy an acre and almost ruin a hundred acres. Pressure of taxes and interest charges on the owners of this blighted district would cause them to sell at last for cheap and poorly-built houses without the introduction of proper street improvements.
Although traffic and carline streets were normally attractive to retail stores in residential districts, it was frequently the case that a grocer, butcher or druggist would find an eligible corner lot in the heart of a residential district and build a store occupying the entire plot. Sometimes he
would alter an existing house, projecting the plate glass front to the street line. This cut off the frontages of the houses in the block that had been built with a uniform setback. If the first comer was successful in his business, others were attracted, and soon the residential section was shot through with the unnecessary business buildings. This hurt the carline street where the business ought to be, and it hurt the residential district where the business ought not to be.
In the great cities especially this freedom of invasion of hurtful uses drove well-to-do families out of the city, where in suburban villages they could to a greater extent obtain protected surroundings. Citizens whose financial ability and public enterprise made them most helpful within the city limits were the very ones that would often be tempted to remove their families outside of the city. Thousands of the best business men would earn their livelihood in the big city, but would give their money and energy to the creating of healthful living conditions in a suburban town. This helped to create a city of factories and tenement houses instead of a city of homes with needed open places.
A man who built a $40,000 home in most of our large cities was considered highly speculative because in a few years he might have an apartment house on one side and a factory on the other. No kind of building was immune from harm. Business districts were invaded by factories, apartment house districts by sweat shops, junk shops and garages, private house districts by apartment houses, and vacant suburban areas by the sporadic chemical or metal factory. There was a succession of invasive uses for which the buildings already erected were not adapted. Sometimes a blighted district ensued. In any case buildings


ZONING
317
1920]
could not be used for their normal life for the uses for which they were designed. Waste on a large scale was inevitable. Sometimes buildings that had a normal life of eighty years were torn down within fifteen years and replaced by a different kind.
Not only were private owners injured but the city itself became less attractive to industrial enterprises, business men and home owners. Chaotic conditions caused workers to travel daily too far from home. The cost of rapid transit lines over and under ground was increased. Street widths and sizes of blocks could not be predetermined. Expensive street improvements, consisting entirely of alterations, became successively necessary. For these reasons the city was not as economically sound as it would be if through community action it could have kept its house in order.
II. PROTECTIVE EFFORTS BEFORE THE SPREAD OF ZONING
But one will say, “Could not all of these injurious effects have been prevented by private restrictions in deeds?” The history of private restrictions has been far from satisfactory. They have operated fairly well in residential developments but have almost never been resorted to for the regulation of skyscrapers, to prevent the invasion of industry in business localities or to stabilize large land areas, different parts of which can properly be put to different uses. When localities are built up without contractual restrictions it is always too late to impose them because private owners can never agree after their buildings are once erected. Efforts are frequently made but a small minority can usually upset the best laid plan. Even in private residential developments the beneficial effect of private restrictions
is apt to be short-lived. Usually these restrictions are for a period of twenty or twenty-five years. In that time three-fourths of the lots are built upon with a uniform class of residences. As the time expires, owners begin to keep their lots, especially vacant comer lots, out of improvement so that on the lapse of the restrictions they may erect apartment houses and thus exploit the private home surroundings. Sometimes during this period home owners will allow their houses to run down so that they will be almost valueless when the restrictions expire, and they can then use their land without great loss for apartment houses or business places. Home owners in such localities must be alert to go to court at the slightest violation of the restrictions, otherwise the courts will hold that the restrictions have become inoperative through laches. Often the restrictions are badly drawn and show lack of foresight. Then litigations are sure to ensue. In any case such restrictions have little effect on the upbuilding of a city that is to continue a center of population for centuries. If the restrictions are perpetual, they are still more troublesome. After the lapse of a long time they are difficult to alter because some owners deriving their title from a common source will not sign releases. The courts are prone to say that the restrictions have expired by lapsing on account of a change in the character of the neighborhood. Perpetual restrictions have proven more harmful than those for a fixed period. Contractual restrictions have been of great service in all cities and they will continue to be. They cannot, however, be looked upon as affording sufficient or long-time protection from an all-city point of view. They are incapable of adaptation to the changing needs of the city. They sometimes stand in the way of normal and natural improvements.


318 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
Some cities have given large powers to official boards or department heads to prohibit offensive uses of buildings or to cause them to be placed in suitable localities. At the best this is a substitution of the rule of man for the rule of law and is apt to result in playing favorites. The method is not legally sound except as to uses of a nuisance character, and many cities are sure to be disappointed before long in finding that the courts will not uphold an enlargement of the unregulated freedom of officials in prohibiting certain buildings in one place and allowing them in another. A landowner who offers his plan to a building department for a building not objectionable as a nuisance can in such a city practically always obtain a mandamus order against the building superintendent commanding him to file the plan and issue the permit. Sometimes cities seek to apply specific regulations to parts of their area, leaving other areas without such regulation. This is equally apt to meet the disapproval of the courts, for all property situated substantially similarly should be treated alike. Public garages afford a good example of the kind of building left to officials to locate on application. While a public garage partakes of a nuisance character and is generally recognized as coming within such control, nevertheless it almost always happens that there is a tendency to employ influence in the obtaining of permits. Garages are a public necessity. Every city should have numerous spots where public garages can be built without the permit being a matter of favor. It is well settled that nuisances can be segregated. Slaughter houses can be compelled to go into assigned localities. The trouble is that the power to segregate slaughter houses, and the very limited power of public officials to locate garages and other
quasi-nuisances has very little effect in bringing about the orderly upbuilding of the entire city. And even this field which might be left to the discretion of officials is apt to become a matter of favor or punishment.
Uniform building laws do not bring about the orderly condition desired. They apply in all parts of the city. They do not recognize that heights of buildings which may be permitted in the intensively used parts of the city should not prevail in the suburbs. They do not recognize that stores which may be built on carline streets should not be built promiscuously among homes. They do not recognize that a lot can be more appropriately built upon to the extent of 90 per cent in the business districts than in the suburbs. In other words they apply uniformly over the entire city. The usefulness of zoning regulations consists in their being different for different districts. Regulations commonly classed as fire limits are a simple form of zoning which has been employed for a long time by many cities.
III. WHAT IS ZONING AND HOW DOES IT PROTECT?
A zone is a belt. Medieval walled towns in Europe were somewhat circular in form. When they outgrew their walls, especially in the case of large cities, the location of the walls would be made into public parks or circular boulevards, and outside of the former walls the land would be laid out in belts, sometimes restricted to different classes of residences. These were called belts or zones. The term zoning, therefore, does not apply strictly in our cities where the different districts assume all sorts of forms, although in general there is a recognition of intensive use in the center of the city surrounded by belts of greater distribution as one


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goes toward the edge of a city. The creation of different districts, accompanied by the application of different regulations, was five years ago called districting, but this word was so apt to be confused with political districts that public favor caught and used the word zoning, until now the zoning of a city is commonly understood to be the creation of different districts for different purposes, and for different kinds of buildings.
In many European cities zoning in a more or less perfect form has been practiced. Those countries as a rule do not have written constitutions. The law pronounced by the supreme power is final. No court can set it aside. Building departments in cities could be instructed to accept some plans and refuse others in different districts. Sometimes a uniform architectural style was obtained by this rather arbitrary control of building departments. In Bremen a medieval appearance has been given even to new buildings because the building department would refuse plans unless of a certain design. In some cities industry was segregated in localities where the prevailing winds would take the smoke away from the city. Sometimes these regulations are arbitrary or based on aesthetics. The ease with which they could be enforced probably prevented the adoption of a comprehensive plan with the details thoroughly worked out. However that may be, our cities have found a comprehensive zoning plan adapted to states whose government depends on a written constitution, and where the courts can set aside legislative acts as unconstitutional.
For a long time people supposed that zoning was impossible in our cities as contrary to our written constitutions. This impression was wrong. The courts had said nothing to warrant this impression. On the contrary the
courts had repeatedly put themselves in line with sensible zoning and against arbitrary zoning.
The reader is assured at this point that he does not have to be a judge or a lawyer to understand the fundamentals of zoning. They are plain common sense and will appeal to any ordinary city official or property owner. The chaotic conditions described in the early part of this article were due to the inability of the individual to protect himself. The power of the community was the only safeguard and the community had not discovered how to exercise its power. Some land-owners did not consider that they really owned their land unless they were free to do anything and everything with it that was possible. Others would gladly treat their neighbors fairly if they had any assurance that their neighbors would do the same. The truth is that no man can make the best use of his own unless his neighbors are required +o make such use of their own as not to injure others. The landowner who is free to put up a skyscraper covering 100 per cent of his land, and opening his windows on his neighbors’ land, may think that his 10 per cent net earnings are a justification of the righteousness of unhampered use of his own property, but when his neighbors put up similar buildings and his rent goes down until it pays barely 2 per cent on his investment, he realizes that fair regulation which would have divided the light and air between him and his neighbors and allowed him to earn a steady 7 per cent or 8 per cent on his investment would be best for him in the long run. But some will say, “If we are not allowed to do as we choose with our own property, the public ought to pay us our damages.” It is a fact, however, that fair regulations compelling the division of light and air are a benefit to both


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owners. One owner gives up something of his absolute ownership and use and in return he receives something from his neighbor.
The people of every state have the inherent right to pass laws for the public safety, health, morals and general welfare. Call it community power or police power—the meaning is the same. It is commonly called the police power, which is something of a misnomer because it has nothing to do with the police. If we think of police power as community power, we will have it about right. It is that power which the state employs for fire protection, for sanitary regulations and for preventing the spread of epidemics. One does not assert that the public must pay him something when the health department says that he must be vaccinated, and yet he is giving up something of his absolute freedom. His compensation is that he, along with all of his neighbors, is protected against the spread of smallpox. Fireproof requirements, plumbing rules, tenement house laws, strength of construction requirements, all come within the police power. They are exercised without compensation being made to the private owner subjected to regulation. The courts rigorously uphold these laws and ordinances, scrutinizing them, however, to see that they are related to health, safety, morals and the general welfare of the community. If they are employed merely on a whim, or for aesthetics or some sentimental object, the courts will not support them. The popular notion and to some extent the official, has prevailed, that if different regulations are enforced in different parts of the city, it cannot be done under the police power but must be done under eminent domain, and compensation must be made. They forget that the health and safety of the community may require different regu-
lations in different parts of the city because the needs of different parts of the city are different. The police power can as well be employed for zoning as for uniform sanitary and fire protection laws. It must, however, similarly be confined within the limits recognized by the courts. That is, zoning must be done with relation to the public health, safety, morals and general welfare. If it is done arbitrarily or by whim or for aesthetics or for purely sentimental purposes or with unjust discrimination, the courts will not uphold it.
Although the police power, as recognized by the courts of our country, adapts itself admirably to the zoning of cities, yet many cities seem to think that they are safer in employing eminent domain. The exercise of eminent domain requires that property or rights over property shall be taken for a public use and that just compensation shall be made. In the very nature of the case it is not applicable to zoning because zoning should cover the entire city, not merely a part. It is for the benefit of all private owners, and is not any more a taking for public use than vaccination is a taking for public use. The expense of appraisal would be calamitous and the spreading of compensation on other property according to benefit would be impossible. Moreover, a vital city is growing and changing. It cannot be run into a fixed mould where it will stay forever. Police power zoning can be altered to fit the changing needs of a growing city, but zoning by condemnation would ossify a city. Some cities after making a mistake in zoning and receiving a setback from the courts, think they must have a constitutional amendment permitting zoning. Constitutional amendments regarding the police power should be avoided unless they are absolutely necessary. The police power


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residing in the state legislature should be ample for zoning if zoning is done wisely.
The first comprehensive zoning in the United States was done in Boston. A building height of 80 feet was allowed on some main thoroughfares and a limit, of 125 feet was imposed on new buildings on all other streets. This ordinance was attacked in the courts for unconstitutionality, but was upheld by the highest court of Massachusetts and was affirmed by the supreme court of the United States. Los Angeles followed with a zoning plan which divided the city into residential and non-residential districts. Under this ordinance, which was retroactive in form, the city authorities ousted a brick yard around which a residential district had grown up. The owner of the brick yard attacked the ordinance on the ground of unconstitutionality but the ordinance was upheld both by the highest court of California and by the United States Supreme Court. Other cities have as a rule considered that it is unduly harsh to make a zoning law retroactive, considering that existing uses and buildings should be allowed to continue subject to certain rules which tend gradually to make them conform to the requirements of the district. After the Boston case was decided and before the decision of the Los Angeles case, the city of New York under the leadership of George McAneny, then a member of the board of estimate and apportionment, made a thorough-going study of skyscrapers the world over but with special relation to the skyscraper district of New York. The city concluded that protective regulations were needed not only in the skyscraper district but throughout the city and not only for high buildings but for height, bulk and use. The first step was to obtain the passage of a legislative enactment granting the police power of the
state to the city for the purpose of dividing the city into districts according to height, bulk and use of buildings with power to make appropriate regulations for each district and with a provision that the regulations might differ in the different districts. The ordinance which the city adopted under this law is supplemented by three maps of the entire city. One map shows a set of districts laid out according to heights allowable; another shows a different set of districts outlined according to the area of the lot that new buildings therein may occupy; the last map shows districts outlined according to allowable uses of land and new buildings. Berkeley, California, and St. Louis, Missouri, followed soon after New York. Other cities followed rapidly.
How does zoning protect in actual practice? In general it stabilizes buildings and values. Most of all it conserves the future. Zoning does not endeavor to put existing stores out of residential localities or apartment houses out of private home localities or factories out of business localities. It regulates new buildings and changes of’ uses. Although it is possible that under the Los Angeles case zoning could go further and oust inappropriate buildings, yet it is considered unwise to do this and successful zoning endeavors to protect investments rather than destroy existing property. When one considers that the great cities of our country will in all likelihood continue as centers of great populations for centuries, one realizes that the harm already done by indiscriminate building is of small account if the future of the city can be protected.
The zoning ordinances and maps differ somewhat in the different cities that have adopted zoning. The interested city official or citizens’ organization should obtain copies of the various


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ordinances and maps which every city will gladly furnish at a nominal cost. The reader must assume that the zoning plan described in this chapter will vary in its details in different cities. New York, for instance, allows buildings on certain broad streets in the skyscraper district to go up 250 feet on the street line before they begin to set back. Smaller cities do not allow such heights, and New York would not have done so if existing buildings of great height had not made it impossible to adopt a more sensible limit.
Limitations for new buildings vary in the different districts, a higher building being allowable in the intensively used parts of the city than in the outskirts. Usually the allowable height has a relation to the width of the street. New York has 2, If, lj and 1 times height districts. This means that a new building in the 2 times district can be built to a height on the street line of 2 times the width of the street. After reaching such a height it must set back at the rate of 1 foot for every 4 feet of additional height. If a street is broader than 100 feet, the building is not allowed any additional height, and if a street is narrower than 50 feet the building need not be correspondingly lower than one erected on a 50 foot street. Towers are allowed of an unlimited height, and steeples, chimneys and other structures defined in the ordinance are excepted from the height regulations. Towers, in the opinion of many, afford a variation in the appearance of a city, prevent monotony, and bring an interest which the city would otherwise lack. Some experienced engineers maintain that allowable heights should not be related to street widths, but this is not the prevailing practice. The setbacks required after the building has gone to the allowable height on the street line are for the purpose of affording access
of light and air to the street itself. Provisions of a similar nature apply to the rear of such buildings.
Height regulations therefore not only limit height of new buildings but insure a fair division of light and air among lot owners. The erection of unnecessarily high skyscrapers is no longer a sign of city progress but rather a sign of city ignorance. Buildings of moderate height broaden out a business center. Values are equalized instead of being absorbed by a few. Office business can be conducted in the daylight instead of under artificial light. There is greater convenience and economy in every way. One would say that economical reasons would sooner or later prevent people from building skyscrapers. But every little while a person or business comes along who wants to advertise itself by a monument even if the earning power of the building is very small. The usual trouble with these monuments is that they hurt their neighbors.
Not less important in the height regulations are the provisions for division of light and air between lot owners. As a building goes higher its side courts must be larger. Details for yards and inner and outer courts should be examined in existing ordinances. The setbacks help to create pyramidal structures which leave light and air for their neighbors;
Height regulations alone, however, are not enough and they do very little to prevent congestion where land values are low. Just as lower heights may be required in the outlying districts, so it is practicable to prevent building on the entire lot in the outlying districts. Then, too, industrial buildings and warehouses along watercourses and railroads sometimes are lighted from above or need no light at all. Such buildings can properly occupy the entire lot. These considera-


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tions make it necessary to employ another set of regulations commonly called area regulations. They supplement the height regulations. Districts of the one sort need not be coterminous with districts of the other sort and in New York they are not. These area districts in New York are A, B, C, D and E. The A districts are warehouse and industrial districts, usually along watercourses or railroads or land which for one reason or another is best adapted to storage and industry. Here new buildings can cover 100 per cent of the lot. The other extreme is the E district adapted to private detached residences, where the new buildings may cover not over 30 per cent of the lot. B districts are adapted to the large office, business, and high apartment house localities. C districts are adapted to non-elevator apartment houses, and D districts to one and two-family private residences in blocks. The E zones of New York, or zones corresponding to them in other cities that have adopted zoning, have been considered one of the most important results of the new movement because they perpetuate the highly restricted residential developments. In New York it is not practical to put up any residential building on 30 per cent of the lot except a one-family private residence. Most of such restricted areas have been placed in E zones on the petition of the property owners. They are so popular that many new E zones have been created. It was at first feared by some that land in these E zones would be less valuable because the building area was so highly restricted, but it turned out that the protective features were so great that the supply of land in these areas could hardly meet the demand. In some cases where restrictions expired or were about to expire the E zone requirements have made the locality
better than it was before. Owners of vacant comer lots that had been held out of use so that apartment houses might be built, have in almost every case improved them with high-class one-family residences. In such districts owners of houses instead of letting them become dilapidated when the private restrictions were about to lapse have improved their homes, adding private garages, sun parlors and substituting copper for tin. These E districts are preventing well-to-do citizens from leaving the city to settle with their families in outlying villages because they offer an opportunity for villa homes protected against all injurious buildings for an unlimited time. In them people can have the advantages of open surroundings and still be near their business, all city conveniences, and have the benefit of low car-fares.
One may ask why they are called E districts instead of private residential districts. The reason is that the method of creating districts graduating from 100 per cent to 30 per cent is a plain employment of the police power with a recognition of health and safety considerations, and the courts will protect a plan which is based on such a foundation. In New York at least it presupposes that an apartment house covering not over 30 per cent of the lot would be substantially as safe and healthful as a one-family house, although as a matter of practice land-owners in E districts will not erect apartment houses. The courts will recognize the common sense of bringing light and air in greater abundance to suburban districts where children are growing up. There is a temptation in cities where land is less expensive to create one family house districts as use districts. This has sometimes been dene under the apprehension that a 30 per cent restriction would not pre-


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vent the two-family or apartment house. Each city must judge for itself whether it will adopt the safe course of creating E districts depending on the 30 per cent limitation preventing hurtful buildings or whether it will follow the more hazardous course of considering private detached residences a separate use. The reason that it is hazardous is because the court is likely to inquire what dangers to health and safety exist in two-family houses, each built on a small fraction of the lot, which do not exist in one-family houses similarly built. Each city in framing its zoning ordinance and maps must keep in mind that it is done under the police power and that the requirements must have a relation to public health, safety, morals and the general welfare. The courts of some states of the far West are undoubtedly willing to recognize a greater scope of the police power than those of some of the more conservative Eastern states.
Private restrictions can continue along with zoning regulations. It is undoubtedly desirable to supplement zoning regulations with private restrictions in the opening of new developments for residences. Inasmuch as private restrictions are contractual and zoning is done under the police power, the one group has no particular relation to or effect upon the other. Private restrictions cannot be copied in zoning. They rest on different bases and are enforced in different ways. Private restrictions are the result of private bargains. Zoning is a public requirement imposed directly or indirectly by the state.
Zoning to regulate height and area would be only a partial remedy. If the protection of zoning stopped at this point, factories, garages, stores and residences could be built anywhere, and there would be no protection against constant injury. Consequently a third
class of regulations is necessary concerning the use of land and buildings and different districts must be created to separate these uses. The use districts need not correspond with the height or area districts and commonly do not. In New York the use districts are,—unrestricted, in which residences and buildings as well as factories can go; business districts, in which residences, as well as business can go; and residence districts, in which business and industry are excluded. Newark, New Jersey, has four use districts,— heavy industry, light industry, business and residence; and excludes new residences from the heavy industry districts which are mainly in or near the salt meadows. Some cities, particularly on the Pacific coast, have created numerous use districts, including districts for private residences, districts for apartment houses and districts for public buildings. In the opinion of the author use districts should be few in order that they may be upheld in our more conservative states. Until we have further light on the subject from the courts, the districts should be, with the possible exception of peculiar circumstances, heavy industry, light industry, business and residence.
Heavy industry districts are intended for industries of a nuisance character and works requiring a large spread of yards and buildings. If these districts can be decided upon before or simultaneously with laying out streets, the blocks should be made larger than for ordinary residence or business. They will usually be near railroads and watercourses. Some well-known advisors consider that residences should not be permitted in heavy industry zones. It will be noticed that this is a departure from the general rule. In New York npw stores or residences may be built in industrial zones. The argument for the exclusion of residences is


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that the surroundings are unhealthful and residences in such locations are almost sure to become neglected and unsanitary. The author, however, is of the opinion that, if the land is sufficiently high for drainage and cellars, it is a hardship to the owner to be deprived of using his land for residences. The residences do not hurt the neighboring factories, and the grounds of prohibition cannot be based on the maxim that one should so use his own as not to injure another. Sometimes heavy industrial districts must be laid out far in advance of use and it would seem to be a hardship to require an owner to pay taxes and perhaps hold his land without the slightest income awaiting the coming of a heavy industry use. Then, too, a piece of land in a heavy industry zone might be too small for a factory and yet be surrounded by large factories. Surely it is a hardship to prevent the owner from making use of it for that purpose which as a last resort a man can always adopt, i.e., for small homes. Where land like the Newark salt meadows is too low for drainage or cellars, the case is somewhat different. Zoning, however, must not be arbitrary. Regulation becomes arbitrary when it prohibits every possible use of land and compels the owner to hold it in idleness.
Light industry zones and business zones are self-explanatory. Public garages or garages for more than five vehicles should be permitted in these two zones only on special permit of a board of appeals. In New York they are classed among heavy industry. A public garage may be as hurtful in a light industry district as in a business district. In New York the board of appeals can allow a new garage for more than five vehicles in a business district only when there is already one such garage in the street between two
intersecting streets. It has been found that light industry cannot be entirely excluded from business districts. Department stores, millinery shops and jewelry stores need to devote a part of their space to light manufacture and this should be permitted in some way. In New York it is provided for by allowing one-quarter of the store space to be used for light industry. Main thoroughfares and car-line streets almost always tend to become business streets. It is well to consider this in zoning localities not yet built up. If small retail stores and shops are compelled to go to certain localities, they should be compelled to go to the main thoroughfares and car-line streets. How often it has happened in our great cities that main thoroughfares have been built up with splendid homes which have later proved to be out of place. Zoning seeks to set aside streets for a long period of fixed usefulness. This object is best attained by giving privacy to private homes. If five or six stores have come into a block of residences fronting on a street car line or a main thoroughfare, it is likely that the street should be put in a business district. It has begun to show its normal destiny and zoning it as a residence district will usually not save the residential values but on the other hand will hold back the development of normal business values.
Residence districts should allow dwellings, clubs, churches, schools, libraries, hospitals, railroad passenger stations, farm buildings, greenhouses and their usual accessories. A private garage as an accessory to a home constructed for not more than five vehicles should be allowed in a residence district. Some have asserted that hospitals and sanitariums should not be allowed in residence districts as they may sometimes be offensive. The question, however, arises as to where they should be


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placed. Surely not in industrial or business districts. It might be well to allow their construction only on a special permit from a board of appeals but this has not yet been compelled in any comprehensive zoning system. Billboard permits are not issued in residence districts in New York. The zoning ordinance has proved to be the first effective control of this subject, recognizing that although bill-boards may be proper in some districts, they should not be scattered among homes, schools and churches. It should here be said that there is a natural tendency for cities of medium size whose nearby areas are not congested to favor the control of different kinds of residential units by creating one-family house districts, two-family house districts and multi-family house districts. This tendency has recently been so great that the author hesitates to condemn it. Where city officials are convinced that an area limitation will not produce one or two family houses they probably must take the risk of the courts’ approval of districting by naming the number of families. Where, however, conditions are such that division of light and air can be provided for by area regulations as has been done in New York, the author is of the opinion that the recognized police power will more nearly justify the zoning.
Zoning is not usually retroactive. That is, the height, area and use regulations prevent city building departments from issuing permits to new buildings which do not conform to the zoning requirements. But after a zoning plan is adopted old factories will be found in residence and business districts, and stores will be found in residence districts. The question arises “ What shall be done with these non-conforming buildings?” It would be a great hardship to the owners to compel them to alter them at once to
conform with the requirements of the district. The zoning ordinance therefore must provide for the gradual elimination of such buildings in a way that will fairly preserve the investment of the owner. The owner can reasonably say that he should be allowed to use his building for the purpose for which it was constructed. On the other hand when he comes to alter or enlarge his building, the community can reasonably say that, although he has the privilege to continue his old building, he has no privilege to alter it or enlarge it in a way contrary to the requirements of the district. In New York an Owner of a store or light industry building which does not conform to the district may change it to any other use of the same grade provided he does not enlarge it at all or reconstruct it. If, however, it is a heavy industry non-conforming building, it cannot be changed to any other use even of the same grade if any structural alteration is made. It will be seen that these rules as time goes on tend to make the buildings conform with the requirements of the district.
The question also arises with these non-conforming buildings whether, if a part of the building only is used for a non-conforming use, such non-conforming use can extend throughout the building. The rule in New York is that a non-conforming use cannot be enlarged at the expense of a residence use. But the better rule would undoubtedly be that a non-conforming use should not be enlarged at the expense of a conforming use. Each city will need to adapt its rule of non-conforming uses to its own peculiar requirements. The ordinance of St. Louis has given a board of appeals the discretion to allow alterations in use, reconstruction and enlargement of such buildings. It would seem, however, that this important subject ought to be


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governed by law rather than by the judgment of a board. The rules of non-conforming uses can be and should be rigid. They may be difficult to state but this fact does not justify their being left entirely to the discretion of a board.
Another subject related to existing non-conforming buildings and uses is the prevention after the zoning ordinance is adopted of the intrusion of non-conforming uses into conforming buildings. For instance in a residence district a home owner may try to carry on a sweat shop or a restaurant or a junk yard. How shall he be prevented? Evidently this is beyond the power of control by permit. The wrongful intrusion must be prevented. The ordinance should make such act unlawful and make provision for ousting the unlawful use. In New York this duty is placed on the fire department. The fire department can send notice to the offending owner directing him to quit the unlawful use. If the owner does not do so, the facts are turned over to the corporation counsel who can bring the offender before the magistrate’s court for fine or imprisonment.
IV. HOW TO OBTAIN A ZONING PLAN FOB A CITY
The state legislature is the repository of the police power. The fact that the legislature creates a municipal corporation undoubtedly endows such corporation with certain necessary functions under the police power. If this was not so, the city could not transact its business. Before, however, a city proceeds to adopt a zoning plan, it is wise to obtain a specific donation of this power from the state legislature. This can be accomplished by a legislative act applicable to all cities of a state, or by amending the charter of the city. An existing home rule act or
general provision should be carefully scrutinized before it is depended upon* in order to make sure that the city possesses the police power so far as height, bulk and use of buildings are concerned, together with the right to. impose different regulations on different districts. The decisions of the courts do not draw the line clearly between the inherent police power of a city merely because the legislature has allowed it to be a city and the larger donation of police power requisite for a zoning plan. Cities have adopted fire limits which are a simple form of zoning and have done this without any specific grant of power from the legislature. New York kept on the safe side by having its charter amended by the legislature in this respect and also, to provide that the board of estimate after a zoning plan was once adopted could not alter it excepting by a unanimous vote in certain cases, and to provide for a board of appeals to be created by the local authorities with power to pass on border-line and exceptional cases of buildings.
Should the zoning plan be prepared by a city planning commission or a. zoning commission? Should such a commission be composed of officials or citizens? Should the council or a commission be empowered to enact the ordinance? Each city will decide these questions, keeping its own peculiar needs in mind. The author gives his own conclusions as the result of his own experience and his observation of progress in many cities for what they are worth. The plan should be prepared by a commission, a majority of whose members should be citizens serving without pay. Certain officials qualified by their experience and proved judgment may be added. No official should be added for the purpose of educating him or swinging him over as an advocate of zoning. The com-


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mission should be unhampered in making suggestions and it has much greater freedom if its makeup is not so largely official that its doings are taken to represent the intention of the administration. A zoning commission has enough to think about without being compelled to consider whether its composition will reflect on the administration or not. If the work goes on wisely with frequent conferences with property owners of all classes and with frequent hearings, there is no danger but that the excrescences and theoretical trimmings will be rubbed off. After the plan is worked out after many hearings and conferences it should be reported to the council who should have the power to hold further hearings, refer it back to the commission if desired and ultimately to enact it. The adoption and amendment of a zoning plan belong to the council as much as the street layout. Moreover the natural growth and changes in the city will require intelligent amendment of the zoning plan year by year and it is probably impossible to expect that citizens serving without pay can keep in touch with the needs of the city so well as officials assisted by the constant advice of the city departments. It is of doubtful wisdom to put actual legislative power in a city planning or zoning commission.
In most cases it is best for a zoning commission to prepare the plan. There is a difference between the planning of public streets and places and the working out of a zoning plan. The former has to do with land and buildings owned or to be owned by the city. Zoning has to do with the regulation •of private property. The two fields are therefore quite distinct. More rapid progress is made by creating a zoning commission to perform a specific piece of work. If the zoning commission can perform its work well
and secure the adoption of the plan, it has aided the work of laying out public streets and places and the locating of public buildings. Its work is fundamental. It should be carried on intensively and not as an incident in general city planning.
A farsighted zoning commission will early enlist the favor of the owners of small homes and stores. They can be shown in the beginning how they can be protected against flats, garages, junk yards and factories. To feature Fifth Avenue, Euclid Avenue or Michigan Avenue is the wrong way to begin. Then, too, throughout the preparation of the plan property owners of all sorts should be taken into the confidence of the commission. Taxpayers’ associations, boards of trade, manufacturers’ associations, fire insurance men, savings banks and title companies, and owners of high buildings, low buildings and vacant land should all have a part in advising what will stabilize property and prevent confiscation.
Zoning looks mainly to the future. The zoning of built-up localities must recognize actual conditions and make the best of mistakes of the past. But the zoning of open areas, while following desirable natural tendencies, must check the undesirable tendencies. Zoning should follow nature and it should not be forgotten that the city has a history. There will be a temptation for radical individuals and officials to use zoning as a field for experimentation. This is a mistake. The scope of the police power is measured by the universality of its recognition as well as the universality of its need. Some of the features of modern zoning have not yet been so widely approved by the courts that cities newly preparing plans can afford to go very far in advance of the procession.
Such a city will be tempted to try piecemeal zoning. On the appointment


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of a zoning commission home owners in localities subjected to some immediate danger will go to the commission and show how they must have an immediate remedy because private restrictions are about to expire or a factory is about to be built or plans for a public garage are being filed. If the zoning commission refuses to act, they go to the council. Sometimes more time is lost in debating the items of proposed piecemeal zoning than would suffice to zone the entire city. Such piecemeal zoning should not be done. In the long run it delays. Precarious localities should get behind comprehensive zoning and hurry it up. Comprehensive zoning of an entire city is strong because localities substantially similarly situated are treated alike. Piecemeal zoning is weak because it is discriminatory. Piecemeal zoning is apt to produce test cases full, of danger because, for instance, an owner of a vacant lot is prevented from building a garage in one residential locality when a similar owner in a similar locality ten blocks away is allowed to build a garage. This is discriminatory on its face and is likely to incur the criticism of the courts. Then if some adverse decision is handed down in such a test case, critics of zoning and sometimes newspapers will assert that the courts have declared zoning to be unconstitutional. More time is taken to explain how the mistake was made and comprehensive zoning is still more delayed. The favor of precarious districts is needed in advancing a general plan. To zone all such districts first is to throw away part of the help which a zoning campaign needs. In New York, St. Louis and Newark the temptation to allow piecemeal zoning was successfully resisted. The actual damage that occurred was almost infinitesimal. If, however, the piecemeal plan had been started the cities might not
be zoned today. Another argument against piecemeal zoning is that one cannot know how to zone any spot in a city until he knows how to zone the entire city because the use of any one locality has some relation to all others.
The zoning of the entire city should be preceded by an accurate mapping of existing buildings and uses. Present and future transportation lines must be taken into account. In New York a chart was made showing height of buildings, another showing frame buildings, another showing use, whether industrial, business or residence, another showing density of population and another showing by different colors the distances of every part of the city from City Hall measured by travelling time on rapid transit railroads. These fundamental data assist in preparing a foundation of facts instead of a foundation of guesswork.
It is apparent that the members of a zoning commission cannot personally attend to the collection of data, preparation of maps and the working out of innumerable detail problems. The city must furnish the zoning commission with a staff headed by a competent expert. The chief of staff should be more than an ordinary engineer or architect or lawyer. He should be a broad-gauge expert in the distribution of urban population, in the layout of streets and public places, in forms and materials of buildings and in the limitations imposed by law on the exercise of the police power. No city should be too proud to retain an outside man. New York city took five years and did not do the job as well as she could do it today in two years. The reason was that she was plowing new ground and there were almost no precedents to help. But some one may say “Why not get the ordinances and maps from zoned cities and pick out what seems to be the best?” The reason is that


330 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
imitation is likely to be disastrous. No two cities are alike. Eacb deserves an accurate study of its own growth, tendencies and needs. The heights of buildings allowed in New York are far too great for imitation. It was the case of the horse being stolen before the barn door was locked. Lower heights in the skyscraper districts could not be imposed with fairness to owners of partially improved land. Too great congestion in tenement house districts is allowed. This was due to some extent to existing conditions and to some extent to the novelty of the enterprise which properly induced caution. The chief of staff should know the reasons that have prompted different methods in different cities. He will, of course, have before him the ordinances and maps of all other cities, but he will be more than an imitator.
We are now ready to listen to the question of the intelligent reader which at this point is quite sure to be “How can you run a city into a zoning plan mould and expect it to stay there; do not cities have to grow and change?” The answer is that zoning encourages growth while at the same time it prevents too rapid changes. Every vital growing city must change and the zoning plan must be capable of change. The same authority that has adopted the ordinance and maps must have the power to amend them. On the other hand a high degree of permanency or stiffness must be insisted upon, otherwise the property owner who puts up a fourteen-story building in compliance with the zoning law might be disappointed to find that the council had altered the law so that a twenty-story building might go up on each side of his building. He would then be penalized because he obeyed the law. Or a man might put up a fine residence in an outlying residence district depending upon its permanence and find that the council had changed it to
business and he was likely to have a butcher store on one side and a grocery store on the other. It is apparent that any provisions inserted in the ordinance itself are not a sufficient protection to owners to build in conformity with the zoning ordinance because one council may undo the work of its predecessor. The only safeguard is in a provision of the legislature which will prevent the city council from freely changing the maps and ordinance. New York obtained an amendment to its charter from the legislature to the effect that the city authorities could not change the ordinance or maps without fixing and advertising a public hearing, and this further provision was added that, if 20 per cent of the frontage affected by the change, or 20 per cent of the frontage opposite, or 20 per cent of the frontage in the rear protested in writing against the change, then the unanimous vote of the board of estimate was required to make the change valid. Under a legislative requirement of this sort there is little danger of hasty action, and if a protest of 20 per cent of the frontage is filed it is practically impossible for the applicant to obtain the unanimous vote of the council unless his case is sound and imperative. Cities which have large powers under the home rule act should ask their state legislatures to impose this check or some similar check upon the city council.
Another provision that should be supplied by the state legislature is to empower the city to create a board of appeals. The city cannot endow a board of appeals with power to decide certain border-line cases of buildings which will be enumerated in the ordinance itself, or to make exceptions in the provisions of the law to carry out the spirit of the law and prevent unnecessary hardship. It is a safeguard in the administration of the law to have a board of appeals. The letter


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of the ordinance and maps may be the extreme of hardship. No words can be used in the ordinance that will provide for the multitudinous contingencies of new buildings. If there is no board of appeals to apply the spirit of the law and vary its letter, the exercise of the police power may in certain cases be arbitrary and incur the criticism of the courts. Moreover it is a great safeguard to preserve that elasticity which a board of appeals can give to a zoning plan in order to minimize the danger of a pronouncement of unconstitutionality by the courts. It is a well-recognized rule of the law that before an aggrieved owner can obtain a writ of mandamus from the court against a building superintendent to compel him to file his plans and issue a permit, he must exhaust all of the remedies afforded him by the city. This means that before he can bring up the question of unconstitutionality he must bring his plans before the board of appeals. Experience has shown that a wise board of appeals can practically always mitigate the unfairness involved in the letter of the law if the applicant has a sound and deserving case. If, however, the board of appeals will not adjust his case to suit him, he goes before the courts with all of the chances against him, for the courts will say that his plans run counter to an impartial plan covering the entire city and that in addition a fair board of appeals having the power of adjustment in cases of unnecessary hardship decided against the applicant. Every decision of the board of appeals should be reviewable by the courts on writ of certiorari. Such review, however, involves no danger of overthrow of the law itself by the courts but only a possible limitation of the functions of the board. Some will say that there should be no board of appeals because such a board will be too easy and break
down the law by granting favors. A corrupt or incompetent board of appeals could do a vast amount of injury but it is the business of the mayor or appointing power to see that the board is made up of impartial and experienced men.
The council should have power to amend the maps and ordinance and the board of appeals should not. The board of appeals should have the power to vary the ordinance and maps in cases of specific buildings and the council should not. In other words the council should have charge of the maps for the law-making power should control the fundamental restrictions. The board of appeals should have charge of the application of the ordinance and maps to specific buildings because the council does not have the time or preparation to go into the details of exceptional circumstances as to specific buildings. There should be no confusion of the powers of the council and the board of appeals. The field of each is entirely separate and distinct.
In New York the board of appeals is authorized by the ordinance to grant a permit for a public garage in a business street if there is already one public garage or public stable in that street between two intersecting streets; to allow the projection of a business building into a residence district or a factory building into a business district in certain specified cases at the borderline between two districts, and to permit a temporary non-conforming use in outlying undeveloped areas. Other powers similar to these are enumerated. Their power to vary the ordinance and maps in cases of unnecessary hardship is an entirely separate power and is given directly by the state legislature.
V. WHERE TO GET INFORMATION
The reader can hardly hope to obtain from this article more than a brief


332 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
outline of the subjects of zoning. The councilman, city engineer or legal adviser of a city contemplating zoning will desire to know where he can obtain more complete information on what has been done or attempted. Probably the most exhaustive books that have been published, collecting data from all cities, giving full tabulation and maps, and with discussions of legal problems involved, are the report of the heights of buildings commission of the board of estimate and apportionment of the city of New York, December 23, 1913, and the report of the commission on building districts and restrictions of the board of estimate and apportionment of the city of New York, June 2, 1916. These reports were made during the preparation of the zoning ordinance and maps for New York. These volumes will be found in many public and municipal libraries. The following cities have to a greater or less extent adopted the zoning plan:
Alameda, Cal.
Berkeley, Cal.
Boston, Mass.
Los Angeles, Cal.
Minneapolis, Minn.
Newark, N. J.
New York, N. Y.
Oakland, Cal.
Palo Alto, Cal.
Sacramento, Cal.
St. Louis, Mo.
Washington, D. C.
By addressing the chief engineer, information can usually be obtained from any of the above mentioned cities. The National City Planning Conference has for the last eight years carried on an unremitting and intensive study of this subject. It has undoubtedly been not only the principal advocate and supporter of zoning but also the most active disseminator of information about zoning. The American City Planning Institute, affiliated with the
National Conference, has devoted a series of meetings to discussing the principles of zoning from every angle, receiving suggestions from every part of the country in the hope that it might promulgate an authoritative statement of such principles. The annual reports of the National Conference contain a great deal of helpful material on zoning. Nelson P. Lewis, chief engineer of the board of estimate and apportionment, Municipal Building, New York city, is president of both organizations, and Flavel Shurtleff, 60 State Street, Boston, Massachusetts, is the secretary.
VT. STATEMENT OF PRINCIPLES OF ZONING FORMULATED BT THE AUTHOR
(1) The subject in relation to city planning should be called zoning, the boards zoning boards or commissions. In laws and ordinances the word zoning should be used in the title and the word districts in the body of the law to specify the areas affected.
(2) Zoning is the creation by law of districts in which regulations differing in different districts prohibit injurious or unsuitable structures and uses of structures and land.
(3) Zoning should be done under the police power of the state and not by condemnation.
(4) Zoning by the exercise of the police power of the state must relate to the health, safety, morals, order and general welfare of the community. It follows therefore that police power zoning must be confined to police power reasons such as fire risk, lack of light and air, congested living quarters and other conditions inimical to the general welfare. The preventive regulations based on these reasons, which necessarily must be applied differently and in different measure in different districts, naturally group themselves into zoning according to use of structures and land, according to height of buildings and according to portion of lot covered by buildings. Zoning might go further and embrace the subjects of fire limits, setbacks, and doubtless other classes of regulations. Enhancement of value alone, or


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aesthetics alone has not thus far been considered by the courts to be a sufficient basis for zoning when done under the police power.
(5) Before enacting zoning regulations a city should have obtained the power to do so from the state legislature. The essential statement in such grant of power is that the city may impose different regulations for structures and for the uses of land and structures in different districts.
(6) Zoning is part of the city plan and should be applied to land as early as possible and where practicable at the time the street layout is adopted. Studies for zoning in undeveloped districts should be accompanied by studies for at least main and secondary thoroughfares.
(7) Zoning when applied to existing cities should be adapted generally to existing conditions but should endeavor to check undesirable tendencies.
(8) In the same city, localities having substantially a like character and situation should be zoned in the same manner. This principle should prevent arbitrary, piecemeal or partial zoning, which is dangerous and may be illegal.
(9) Zoning should be sufficiently stable to protect those who comply with the law, but at the same time should be susceptible of change by the municipal authority under strict checks prescribed by state law, so that it can be altered to meet changing conditions or conditions not adequately recognized.
(10) Provision should be made that interested property owners may initiate the consideration of changes, but the actual application of the zoning regulations to the land and any changes therein should rest with the municipal authority and not with the property owners. It is a wise expedient to require more than a majority vote or even a unanimous vote, of the municipal authority to changes unless a substantial majority of the property owners affected thereby have given their consent thereto.
(11) Zoning regulations may properly be supplemented by restrictions in deeds based upon purely aesthetic reasons or for the purpose of creating a uniform residential development or for other purposes.
(12) Regulations applicable to all buildings of a class regardless of location, such as relate to plumbing, strength of material, safety devices, or protection of employes against fire should not be placed in a zoning law. They are properly part of a housing law, factory law or building law. Only those requirements which differ in different districts enter into a zoning law.
(13) Use districts normally comprise residence, business, light industry and heavy industry districts. The kinds of industries prohibited in light industry districts should be enumerated. Residences should be permitted in business districts and both residences and business should be permitted in light industry districts. It is a moot question whether and under what conditions residences should be prohibited in heavy industry districts. Classes of use districts should be few. The more minute adaptation to local needs should as a rule be provided for in the area and height zoning and by permitting special uses under conditions stated in the ordinance or under the administration of a board of appeals empowered to make building exceptions. There is lack of agreement as to the desirability and legality of prohibiting apartment houses, flats, tenement houses and other multiple dwellings in certain districts limited to single family dwellings.
(14) Where zoning regulations apply only to new buildings (as is the safer practice) buildings occupied for non-conforming uses should be placed under constant pressure to become conforming through changes with the lapse of time.
(a) Structural alterations made in a non-conforming building should not during its life exceed one-half its value, nor should the building be enlarged, unless its use is changed to a conforming use.
(b) No non-conforming use should be extended by displacing a conforming use.
(c) In a residence district no non-conforming building or premises devoted to a use permitted in a business district should be changed into a use not permitted in a business district.
(d) In a residence or business district no non-conforming building or premises devoted to a use permitted in a light industry district should be changed into a use not permitted in a light industry district.
(e) In a residence, business or light industry district no building devoted to a use excluded from a light industry district should be structur-


334 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
ally altered if its use shall have been changed since the time of the passage of the ordinance to another use also excluded from a light industry district.
(f) In a residence, business or light industry district no building devoted to a use excluded from a light industry district should have its use changed to another use which is also excluded from a light industry district if the building has been structurally altered since the time of the passage of the ordinance.
(15) In business and industry districts towers within a prescribed height limit should be permitted but should not occupy over one-quarter of the lot area. They should be allowed on the street line all the way up, but should stand away from side lines according to a suitable rule.
(16) Height limitations should be determined primarily by widths of streets and the use of the property. There should also be flat maximum limitations irrespective of street widths which should be fixed with due regard to local conditions.
(17) Included in area limitations there should be a provision for the percentage of lot that can be covered and a limitation of families per acre or of the minimum square feet of lot area per family.
(18) There should be an administrative board with power under state law:
(a) To rectify on appeals the errors of building superintendents in passing on applications for building permits.
(b) To decide borderline and exceptional cases of buildings where specified in the ordinance.
(c) To vary the literal requirement of the law in individual cases of buildings where unnecessary and excessive hardship is caused and the intention of the law is equally accomplished by an alternative method to be prescribed.
Not only should the powers of such a board be specified in the ordinance, but the state legislature should authorize the municipal authority to create such a board and to provide in the ordinance what borderline and exceptional cases it may decide. A larger vote than a mere majority should be required for an affirmative decision. Proceedings and records of the board should be public and members of the board should be removable for cause. Decisions of the board should be subject to court review.
VII. SUGGESTIONS FOR FORMS OF LEGISLATIVE ENACTMENTS
The acts of the legislature of the state of New York probably cover the subject of zoning more completely than those of any other state. Reference to these enactments is more confidently made by the author because they have been worked out from the ground up in the most painstaking manner, and have stood the test of court construction in New York city.
The statutes applicable to New York city will be found in Chapter IX “ Statutes and Ordinances.” They are embodied in the charter of the city of New York.
Appended hereto, however, is the New York legislative enactment granting zoning powers to all cities of the state. This is now the law. It is followed by a carefully prepared statute, containing the best features of the New York charter, with a few changes made desirable by court decisions. The proposed statute is to apply to all the cities of the state except New York and Rochester and is at the present writing pending as an amendment to the general city law in the state legislature.
General City Law of the State of New York
Chapter 483
An Act to amend the general city law, in relation to the regulation of buildings and the location of trades and industries, passed May 15, 1917.
(Section 20. Grant of specific powers. Subject to the constitution and general laws of this state, every city is empowered):
24. To regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts and other open spaces, and for said purposes to divide the city into districts. Such regulations shall be uniform for each class of buUdings throughout any district, but the regulations in one or more districts may differ from those in other districts. Such regulations shall be designed to secure safety from fire and other dangers and to pro-


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mote the public health and welfare, including, so far as conditions may permit, provision for adequate light, air and convenience of access, and shall be made with reasonable regard to the character of buildings erected in each district, the value of land and the use to which it may be put, to the end that such regulations may promote public health, safety and welfare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of buildings and enhance the value of land throughout the city.
25. To regulate and restrict the location of trades and industries and the location of buildings, designed for specified uses, and for said purposes to divide the city into districts and to prescribe for each such district the trades and industries that shall be excluded or subjected to special regulation and the uses for which buildings may not be erected or altered. Such regulations shall be designed to promote the public health, safety and general welfare and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the direction of building development, in accord with a well considered plan.
Pending Amendment
An Act to amend the general city law in relation to the regulation of buildings and the location of trades and industries.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Chapter twenty-six of the laws of nineteen hundred and nine, entitled “An Act in relation to cities constituting Chapter twenty-one of the consolidated laws,” as amended, is hereby amended by adding after Article 5, a new article to be Article 5-a, to read as follows:
Building and Use Districts
§81. Board of Appeals. 1. The mayor of any city may appoint a board of appeals consisting of five members, each to be appointed for three years. Such hoard of appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section 20 of this act. They shall also hear and decide all matters referred to them or upon which they are required to pass under any ordinance of the common council adopted pursuant to such two paragraphs. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which they are required to pass under any such ordinance or to effect any variation in such ordinance. Every decision of such board shall, however, be subject to review by certiorari. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the city.
2. Appeal how taken. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and with the board of appeals of a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
3. Stay. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by the supreme court, on application, on notice to the officer from whom the appeal is taken and on due cause shown.
4. Hearing of and decision upon appeal. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeals shall have power in passing upon appeals, to vary or modify any of its rules, regulations or provisions relating to the construction, structural changes in, equipment, or alteration of buildings or structures, so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done.
§82. Certiorari to review decision of board of appeals. 1. Petition. Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any officer, department, board or bureau of the city, may present to the supreme court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented to a justice of the supreme court or at a special term of the supreme court within thirty days after the filing of the decision in the office of the board.
2. Writ of certiorari. Upon the presentation of such petition, the justice or court may allow a writ of certiorari directed to the board of appeals to review such decision of the board of appeals and shall prescribe therein the time within which a return thereto must be made and served upon the relator or his attorney, which shall not be less than ten days and may be extended by the court or a justice thereof. Such


336 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
writ shall be returnable to a special term of the supreme court of the judicial district in which the property affected, or a portion thereof, is situated. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.
8. Return to writ. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return must concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and must be verified.
4. Proceedings upon return. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
5. Costs. Costs shall not be allowed against the board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.
6. Preferences. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
§83. Amendments, alterations and changes in district lines. The common council may from time to time on its own motion or on petition, after public notice and hearing, amend, supplement or change the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section 20 of this act. Whenever the owners of 50 per cent or more of the frontage in any district or part thereof shall present a petition duly signed and acknowledged to the common council requesting an amendment, supplement, change or repeal of the regulations prescribed for such district or part thereof, it shall be the duty of the council to vote upon said petition within 90 days after the filing of the same by the petitioners with the secretary of the council. If, however, a protest against such amendment, supplement or change be presented, duly signed and acknowledged by the owners of 20 per cent or more of any frontage proposed to be altered, or by the owners of 20 per cent of the frontage immediately in the rear thereof, or by the owners of 20 per cent of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by the unanimous vote of the council.
§84. Article limited. This article shall not apply to the city of New York.
Section 2. This Act shall take effect immediately.
vni. OPINIONS OP THE COURTS
Scope op the Police Poweb
C., B. & Q. Railway r. Drainage Commissioners, 200 U. S., 561
City of Rochester v. West, 164 N. Y. 510 Cusack v. The City of Chicago, 267 111., 844; U. S. Supreme Court, 242 U. S. 526 (Jan. 15,1917)
Watertown v. Mayo, 109 Mass. 315 Commonwealth v. Alger, 7 Cush. 53 Fisher v. McGirr, 1 Gray, 1 Commonwealth v. Tewksbury, 11 Met. 55 Baker v. Boston, 12 Pick, 184 Vandine, petitioner, 6 Pick, 187 Slaughter-House Cases, 16 Wall. 36 Cronin v. People, 82 N. Y. 318 Barbier v. Connolly, 113 U. S. 27 City of Chicago v. Stratton, 162 111. 494, 35 L.R.A.84
Shea v. City of Muncie, 148 Ind. 14, 46 N, E. 138 Matter of McIntosh v. Johnson, 211, N. Y. 265. Reinman v. Little Rock, 237 II. S. 171.
People ex rel. Busching r. Ericsson (1914), 263 111. 368,105 N. E. 315, L. R. A. 1915 D 607 People ex rel. Keller v. Village ofOak Park (1915), 266 IU. 365, 107 N. E. 636 People ex rel. Huntley Dairy Co. v. Village of Oak Park, Supreme Court of Illinois, April 22, 1915, 268 111. 256
People ex rel. Lincoln Ice Co. v. City of Chicago, Supreme Court of lUinois, October 28,1913, 260 IU. 150
Evans v. Reading Chemical Co., Supreme Court of Pennsylvania, March 12, 1894, 28 Atl. Rep. 702.
People 5. Lewis, Supreme Court of Michigan, June 5, 1891, 49 N. W. Rep. 140 PhUlips v. City of Denver, Supreme Court of Colorado, November 22, 1893, 84 Pac. Rep. 902
People ex rel. Com HiU Realty Co. *. Stroebel, N. Y. Court of Appeals, November 18, 1913, 103 N. E. Rep. 735, 209 N. Y. 434 City of Spokane e. Camp, Supreme Court of Washington, October 15, 1908, 97 Pac. Rep. 770
People ex rel. Kemp v. D’Oench, 111 N. Y. 359 Tenement House Dept. ». Moeschen, 179 N. Y. 325
Welch v. Swasey, 193 Mass. 364. Affirmed: 214 U. S. 91
Gundling v. Chicago, 177 U. S. 183,188 Cochran v. Preston, 108 Md. 220, 23 L. R. A. (N. S.), 1163
Ex Parte Quong Wo, 161 Cal. 20, 118 Pac. 714 In re Montgomery, 163 Cal. 457, Ann.Cas. 1914 A, 130, 125 Pac. 1070
Nahser t>. City of Chicago, 271 HI. 288, L. R. A. (1916), 95
People ex rel. Ormsby v. BeU, 218 N. Y. 212 Willison v. Cooke, 54 Colo. 320, 44 L. R. A. (N. S.) 1030
Spann r. City of Dallas, 189 S. W. 999 Bacon c. Walker, 204 U. S. Sll


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State a. Taubert (1914), 126 Minn. 871, 148 N. W. 281
State a. Withnell (1912), 91 Neb. 101,135 N. W.
376, 40 L. R. A. (N. S.) 898 Horton a. Old Colony Bill Posting Co. (1914), 36 R. I. 507
In the Matter of the Application of Richard Russell, New York Supreme Court, Niagara Co., April 6, 1916
Quintini a. City of Bay St. Louis, 64 Miss. 483, 1 South 625, 60 Am. Rep. 62 State a. Gurry, Court of Appeals of Maryland, October 7, 1918, 121 Md. 534, 88 Atl. 546, 47 L. R. A. (N. S.) 1087, Ann. Cas. 1915 B, 957
Stubbs a. Scott, 127 Maryland 86 Bostock a. Sams, 95 Md. 400 Shepard a. City of Seattle, July 16,1910, Supreme Court of Washington, 109 Pac. Rep. 1067 Ex parte Hadacheck, 165 Cal. 416, L. R. A. 1916B1248
Hadacheck a. Sebastian, 239 U. S. 394 State ex rel. Lachtman a. Houghton, 158 H. W. Rep. 1017. A valuable discussion of this and other cases by R. S. Wiggin in Minnesota Law Review, February, 1917.
Lake Shore and Mich. So. Ry. Co. a. Ohio, 173 U. S. 285
Noble State Bank a. Haskell, 31 Sup. Ct. 186 (Va.)
Bonnett a. Vallier, 116 N. W. Rep. 885 Calvo a. City of New Orleans, 67 S. W. Rep. 338
Grant of the Police Power bt the Legislature to the City
City of Olympia a. Mann, 1 Wash. 389 Mount Vernon First National Bank a. Sarlls, 129 Ind. 201, 13 L. R. A. 481 Commonwealth a. Roberts, 155 Mass. 281 Health Department a. Rector, etc., 145 N. Y. 32 Attorney-General a. Williams, 174 Mass. 476 (Copley Square, Boston)
People ex rel. Friend a. Chicago, 261 111. 16 Eubank a. City of Richmond, 226 U. S. 137 State a. Johnson, 114 N. C. 846
Eminent Domain not Applicable to Zoning
Sanitary District of Chicago a. Chicago and A. R. Co., Supreme Court of 111., February 17, 1915, 108 N. E. Rep. 312 Forster a. Scott, 136 N. Y. 577 Matter of opening Furman Street, 17 Wend. (N. Y.), 649
Matter of opening Rogers Avenue, 29 Abb.
N. C. (N. Y.), 361 Edwards a. Bruorton, 184 Mass., 529 Curran a. Guilfoyle, 38 App. Div. 82 (N. Y.) Matter of Clinton Ave., 57 App. Div. 167 (N. Y.) 160 App. Div. 31 (N. Y.)
People ex rel. Dilzer a. Calder, 89 (N. Y.) App. Div. 503
St. Louis a Hill, 116 Mo. 527 (1893)
Fruth etal. a. Board of Affairs of City of Charleston, Supreme Court of Appeals of West Virginia, 84 S. E. Rep. 105
337
Aesthetics Alone Not a Proper Basis fob Employment of the Police Power
People a. Wineburg Adv. Co., 195 N. Y. 126 People ex rel. Publicity Leasing Co. a. Ludwig, 218 N. Y. 540
People a. Green, 85 (N. Y.) App. Div. 400 Haller Sign Works a. Physical Culture Training School, 249 III., 436, 84 L. R. A. (N. S.) 998 Passaic a. Paterson Bill Posting, Advertising & Sign Painting Company, 72 N. J. L. 285 (1905)
Varney a. Williams, Supreme Court of California, March 18,1909,100 Pac. Rep. 867 Gunning Advertising Co. a. City of St. Louis, 285 Mo. 99, 137 S. W. 929 City of St. Louis a. Dorr, 145 Mo. 466, 42 L. R. A. 686
Lawton a. Steel, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385
State ex rel. Omaha Gas Co. a. Withnell, Supreme Court of Nebraska, January 5, 1907, 110 N. W. Rep. 680
Parker a. Commonwealth, 178 Mass. 199
Procedure under Zoning Ordinances
Whitridge a. Park, N. Y. Law Journal, February 19, 1917
Anderson a. Steinway, N. Y. Law Journal, January 23, 1917; N. Y. Law Journal, June 19 1917
Albany Heights Realty Co. a. Vogt, N. Y. Law Journal, July 19, 1919
People ex rel. Beinert a. Miller, 165 N. Y. Supp. 602;188 A.D. 113
People ex rel. Cotton a. Leo, N. Y. Law Journal, February 27, 1920
People ex rel. Flegenheimer a. Leo, N. Y. Law Journal, May 8, 1918
People ex rel. Sondem a. Walsh, N. Y. Law Journal, July 25,1919
People ex rel. N. Y. Central R. R. a. Leo, N. Y.
Law Journal, December 19, 1918 West Side Mortgage Co. a. Leo, N. Y. Law Journal, February 20, 1919 Whitridge a. Calestock. 165 N. Y. Supp. 640
IX. STATUTES AND ORDINANCES
Statutes
Iowa, 1917, chapter 138 Illinois, June 28, 1919 Massachusetts, 1898, chapter 452 Massachusetts, 1904, chapter 333 Minnesota, 1915, chapter 128 New Jersey, 1918, chapter 146 NewYork, charter of city of New York, Sections 242a-242b; 718-719 New York, 1917, chapter 483 New York, charter of Rochester, Laws 1917, chapter 505


338 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
Ohio, February 13,1920 Pennsylvania, May 11,1915 U. S. Congress for Washington, March 1, 1920
Wisconsin, 1913, chapters 457 and 743 Ordinances
Alameda, Calif., 1919, ordinance No. 144, new series
Berkeley, Calif., 1919, reported May 6, 1919
City of New York, zoning ordinance, July 25, 1916
Minneapolis, Minn., ordinance, February 28, 1913
Newark, N. J., zoning ordinance 1919 Niagara Falls, N. Y., zoning ordinance 1920
Oakland, Calif., ordinance No. 806,
N. S.
Portland, Ore., zoning ordinance 1920 Sacramento, Calif., ordinance No. 290, 3rd series
St. Louis, Mo., zoning ordinance, May, 1918
X. THE BIBLIOGRAPHY OF ZONING BY THEODOHA KIMBALL1
Within the last eight years in this country there have appeared a considerable number of publications relating to zoning. The earliest of these dealt largely with European practice as a suggestion or guide for proposals in the United States. As our cities drafted their own zoning ordinances, and succeeded in getting them adopted, a steady and increasing stream of reports and descriptive articles has come forth, valuable to other cities as a record of experience. In addition, members of the American City Planning Institute,—especially Messrs. Bassett, Cheney, Swan, Whitten and Williams,—have summarized the legal situation in several authoritative pa-
1 Librarian, School of Landscape Architecture at Harvard University; Honorary Librarian, American City Planning Institute.
pers, particularly useful for reference. A selection from all the above-mentioned groups of publications is given below, together with a few other articles, one of which shows the awakening interest of Australia in the subject, and the remainder, certain basic facts which must be taken into consideration in making zoning plans. No items in the German language have been included, since German practice has been ably outlined in several of the articles given.
A complete bibliography of American references on zoning would include a number of additional titles, but they are either progress items later superseded, or publications, without explanatory text, of ordinances, a complete account of which will be found by consulting the list of cities where zoning has been adopted, given elsewhere in this chapter.
This bibliography has been checked by Mr. Bassett with the files of the Zoning Committee, and covers all important publications received both at Harvard School of Landscape Architecture and the Zoning Committee’s office up to March 25, 1920.
Selected References on Zoning
In Books, Repdrls, and Pamphlets Australian Town Planning Conference and Exhibition. Proceedings, 2d, 1918, p. 163-176: Districting or zoning of cities and towns, by Henry F. Halloran. illus. [General paper to urge problem upon Australia.] Bassett, Edward M. Constitutional limitations on city planning powers. City of New York, Board of Estimate and Apportionment, Committee on City Plan, 1917. lOp. [Contains full citations of decided cases on zoning.]
Berkeley, Calif. City Planning Commission. Proposed comprehensive zone ordinance for the City of Berkeley, California, as introduced before the City Council, May 6, 1919, Outline and explanation of proposed ordinance. 45p.
Boston, Mass. Commission on Height of Buildings. Report, November 2, 1916. 21p. illiis. (Document 114-1916)
Cheney, Charles Henry. Procedure for zoning or districting of cities. San Francisco,


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1920]
California Conference on City Planning, Sept. 1917. 15p. plans. (Bulletin No. 2)
Chicago. Citt Council. Building districts and restrictions. A bill for an Act granting to cities and villages in the state of Illinois power to create residential, business and industrial building districts or zones. Recommended by the city council of the city of Chicago to the general assembly of the state of Illinois for enactment into law; and a statement of the desirability of giving the city of Chicago power to create building districts, presented to the committee on judiciary of the city council of the city of Chicago, by Alderman Charles E. Mer-riam. Feb. 1917. 56p.
Chicago, III. Citizens’ Zone Plan Conference, Report of Proceedings. Dec. 16, 1919. 94p. (Secure from D. L. Goodwillie, Union League Club, Chicago.)
Civic Club or Allegheny County. Municipal Planning Committee. Districting and zoning; what it is; why Pittsburgh should do it. Jan. 1, 1918. 7p. illus. plans. (Second Special Bulletin)
Davis, Eakl H., compiler. Zoning. [A compilation showing the advance of the movement in the United States.] St. Louis, July 1917. [38p.] plans. (St. Louis Public Library Monthly Bulletin, n. s. v. 15, no. 7)
Detroit, Mich. City Plan Commission. A building zone plan for Detroit. Nov. 1919. 18p. illus. T. Glenn Phillips and Harland Bartholomew, consultants.
Ford, George B. Building zones; a handbook of restrictions on the height, area and use of buildings, with especial reference to New York City. New York, Lawyers Mortgage Co. [1917.] 86p. 4-plans, illus. [Contains digest of cases: Constitutionality of the zone plan, by H. S. Swan.]
Hurd, Richard M. Principles of city land values. New York, The Record and Guide, 1908. p. 56-88: Directions of growth— Distribution of utilities. illus. plans. [Important facts to be taken into account in zoning plans.]
Lewis, Nelson P. The planning of the modern city. New York, Wiley and Sons, 1916. p. 260-285: Restrictions. illus. plan. [Relates largely to building height regulation and districting.]
McBain, Howard Lee. American city progress and the law. New York, Columbia University Press, 1918. p. 92-128: City planning, Building heights and zoning.
Massachusetts. General Court. Report relative to construction, alteration and maintenance of buildings, Feb. 1915, p. 44-52. Div. 6: Building districts. (Secure from State Supt. of Documents, State House, Boston)
Massachusetts. Homestead Commission. Bulletin No. 6, June 1917, p. 8-21: [Districting] In Proceedings of Fourth Annual City and Town Planning Conference of Massachusetts Planning Boards. (Secure from Homestead Commissioa, State House, Boston.)
National Conference on City Planning.
(60 State St., Boston.) Proceedings-----
4th, 1912, p. 173-191: The control of municipal development by the “Zone system” and its application in the United States, by B. Antrim Haldeman. With discussion. Condensed in American City, Sept. 1912.
----6th, 1914, p. 92-132: Protecting residential districts, by Lawrence Veiller. With discussion. Also published separately by National Housing Association.
----8th, 1916, p. 147-176: Districting by
municipal regulation, by Lawrence Veiller. With discussion.
----9th, 1917, p. 168-227, 289-298: Districting and zoning of cities. Introductory remarks, by Henry D. Ashley.—Districting and zoning of cities, by Lawson Purdy.—Districting progress and procedure in California, by Charles Henry Cheney.—Building heights in Washington, D. C., by Richard B. Watrous.—Constitutional limitations on city planning powers, by Edward M. Bassett. Also published separately by City of New York.
----10th, 1918, p. 34-71: The zoning of residence sections, by Robert H. Whitten.—Industrial zoning in practice, by Herbert S. Swan. With discussion. Mr, Swan’s paper has been condensed in American Architect, Apr. 2, 1919; American City, July 1918; Municipal Journal, Baltimore, June 21, 1918; Municipal Journal, New York, Sept. 14, 1918.
National Conference on Housing. (105 East 22d St., New York) Proceedings, Sd, 1913, p. 54-62, 143-157: Districted residential and industrial districts in German cities, by Frank Backus Williams. With discussion. Also in Journal of American Institute of Architects, Jan. 1914.
New York (City). Heights of Buildings Commission. Report of the heights of buildings commission to the committee on the height, size and arrangement of buildings of the Board of Estimate and Apportionment of the City of New York. Dec. 23, 1913. New York, 1913. 295p. illus. Edward M. Bassett, chairman, Lawson Purdy, vice-chairman, George B. Ford and R. H. Whitten, consultants. [Appendices include: The German zone building regulations, by F. B. Williams.—Building restrictions in various cities, by H. S. Swan.]
New York (City). Commission on Building Districts and Restrictions. Final report, June 2, 1916. (Also Supplementary ed.. The City Club of New York.) City of New York, Board of Estimate and Apportionment, Committee on the City Plan, 1916, ISOp. illus. plans. Edward M. Bassett, chairman of the commission, Lawson Purdy, vice-chairman, George B. Ford and R. H. Whitten, consultants. Tentative report was issued March 10, 1916. [Explanatory articles on both reports, by George B. Ford, appeared in various periodicals in 1918. The final report is perhaps the most compre-


340 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May
hensive treatise on zoning now in print, referring to both American and European practice.]
Newark, N. J. City Plan Commission. Encouraging proper city growth through building districts. Reprinted from a series of articles published in the Newark Sunday Call, beginning Feb. 4, 1917. (ISp.) illus. plan.
Newark, N. J. Commission on Building Districts and Restrictions. Proposed building zones for Newark; tentative report. Sept. 16, 1919. 44p. 3 folded maps in-
serted. Herbert S. Swan, consultant.
Nolen, John. Zoning problem of the city of Niagara Falls; an outline of regulations. Issued by Zoning Committee, Niagara Falls, N. Y. 1919. lOp. Revised edition, May 1, 1919.
Portland, Ore. City Planning Commission. Zoning and city planning for Portland, Oregon. June 1919. 55p. illus. (Bulletin
No. 1). References on zoning and city planning, p. 55.
---- -----. Proposed building zones for the
city of Portland, Oregon, as tentatively recommended by the Neighborhood Property Owners Meetings and the City Planning Commission, Oct. 25, 1919. 32p. (Bulletin No. 4.) C. H. Cheney, consultant. [Report contains section: The legality of zoning, by Herbert S. Swan, p. 15-19.]
Robinson, Charles Mulford. City planning. New York, G. P. Putnam’s Sons, 1916. p. 277-288: The zoning or districting system, plan.
St. Louis. City Plan Commission. Preliminary statement on districting; a reasonable exercise of the police power for health, safety and general welfare. July 1916. 3p.
----------. Zoning for St. Louis; a fundamental
part of the city plan, Jan. 1918. 30p. illus. Harland Bartholomew, consultant.
----------. Height, area and use districts and
restrictions. May 1918. Folio of maps.
----------. The zone plan. June 1919. 82p.
illus. plans. [Contains section of “expert testimony” giving arguments in favor of zoning from hygienic, economic, etc., points of view.] Harland Bartholomew, consultant.
Wiluams, Frank Backus. Akron and its planning law. Akron (Ohio) Chamber of Commerce, 1919, p. 16-31: Building regulation and zoning.
----------. Building regulation by districts—
the lesson of Berlin. New York, Apr. 1914. 9p. maps. (National Housing Association Publications, No. 24.)
----------. The zoning or districting system in
its relation to housing. Massachusetts Civic League (3 Joy St., Boston) [1915.]
8p.
In Periodical*
American Architect (243 West 89th St., New York), Nov. IS, 1918, vol. 114, p. 592-594.
The non-conforming building in zoning, by Herbert S. Swan.
-----------, Dec. 25, 1918, vol. 114, p. 781-782,
Zoning and reconstruction, by Herbert S. Swan.
American City (154 Nassau St., New York), Dec. 1913, vol. 9, p. 517-518. The street as the basis of districting, by F. B. Williams.
----------, Apr. 1916, vol. 14, p. 328-333. illus.
City planning by coercion or legislation, by George B. Ford.
----------, Aug. 1916, vol. 15, p. 183-184.
The new Berkeley zone ordinance, by Charles H. Cheney.
----------, Oct. 1917, vol. 17, p. 357. The new
California State Zoning Act, by Charles H. Cheney.
----------, July 1918, vol. 19, p. 3-6. illus. plan.
Zoning as a war-time measure, by Charles H. Cheney.
----------, Aug. 1918, vol. 19, p. 127-130. illus.
The St. Louis zoning ordinance, by Harland Bartholomew.
---- -----, July 1919, vol. 21, p. 1-3. illus.
Comprehensive zone ordinance adopted by Alameda, by Charles E. Hewes. [An up-to-date ordinance typical of recent zoning on Pacific Coast.]
----------, Nov. 1919, vol. 21, p. 458-460. The
legality of zoning regulations, by Herbert S. Swan.
City Plan (National Conference on City Planning) Dec. 1917, vol. 3, no. 3, p. 1-12. [Zoning or districting of cities; papers and discussions at first meeting of American City Planning Institute held in New York City, Nov. 24] (publication out of print).
Housing Betterment (National Housing Association, New York), Feb. 1920, voL 9, no. 1, p. 53. A zoning tour [undertaken by Chicago citizens to review the experience of certain cities with a view to promoting the adoption of such a law in Chicago.]
Landscape Architecture. (15 East 40th St., New York), Jan. 1917, vol. 7, p. 53-64. The Dusseldorf building ordinance, by Frank B. Williams. [From his work on city-planning law, in preparation.]
Municipal Journal (243 West 39th St., New York), Dec. 14, 1916, vol. 41, p. 738-740. Legality of zone ordinances, decisions by the courts of several states concerning the rights of cities to prohibit certain commercial uses of property in residential sections, by Walter F. Meier.
----------, Nov. 15, 22, 1919, vol. 47, p. 290-292,
310-312. illus. Building zones for Newark, by H. S. Swan.
National Municipal Review (National Municipal League), May 1917, v. 7, p. 325-336. Building Zone Plan of New York City by R. H. Whitten.
----------,May 1918, vol. 7, p.244-254. How zoning works in New York, by Herbert S. Swan.
----------, May 1919, vol. 8, p. 226-229. The
next problem in city zoning, by Francis P.


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1920]
Sloan. [Refers to already existing stores and factories in newly created residential zones.]
---------, Sept. 1919, vol. 8, p. 501-502. St.
Louis zoning law under fire, by Louis F. Budenz.
---------, Jan. 1920, vol. 9, p. 81-43. Zoning
in practice by Charles H. Cheney. Paper at 11th National Conference on City Planning, Buffalo, 1919.
National Real Estate Journal (189 North Clark St„ Chicago), Nov. 1919, vol. 20, No. 4, p. 21-24. illus. How zoning standardizes values, by Charles H. Cheney.
---------, Jan. 5, 1920, vol. 21, no. 1, p. 25-28.
illus. Chicago zoning plan conference; a two-days’ drive to create popular interest and approval touches many phases of the subject.
---------, Mar. 1, 1920, vol. 21, no. 5, p. 19-22.
Zoning experiences in many cities, by Har-land Bartholomew.
Real Estate Magazine, (Real Estate Board, 217 Broadway, New York), Feb. 1920. How the zoning law has worked the last three
years and how it can be improved, by Edward M. Bassett. [Refers to New York City.]
Special Libraries (Special Libraries Association, 120 Peterborough St., Boston), Jan. 1916, vol. 7, p. 2-7. Bibliography on residential and industrial districts in cities, by H. A. Rider.
Survey (112 East 19th St., New York), Mar. 6, 1920, vol. 43, p. 675-680, 718. illus. Unwalled towns, by Bruno Lasker. [Tendencies towards social segregation to be guarded against in town planning and zoning.]
Town Planning Review (University of Liverpool, England), Oct. 1910, Jan. 1911, vol. 1, p. 235-245,803-311. plan. Central Liverpool; an attempt at an analysis of the geographical distribution of civic functions, by Ramsay Muir. Contents: Office Liverpool.—Shopping Liverpool.—Administrative and official Liverpool.—The zone of hospitality and amusement.—The educational zone. A significant study of city districts.


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NATIONAL MUNICIPAL REVIEW VOL. IX, No. 5 IMAY, 1920 TOTAL No. 47 VIEWS AND REVIEWS I FROM time to time when reformers get to musing together, somebody mentions the need of a state-wide militant civic association to which can be committed the task of pressing consistently and influentially for better conditions in the state government. The California Taxpayers’ Association is the only one in the country and it is doing a beautiful job but from this distance it appears not to be rounded out by activity of the rank and file of the membership in conventions and committees which, in the long run, is essential to influence. In New York and Illinois there are those valuable associations which keep tabs on legislators and supply the public and the candidates with tese paragraphs of elaborately substantiated fact, but these are bureaus rather than associations and are largely prevented from lobbying for progressive measures by the necessity of irritating as candidates the very men they must cajole as legislators. Elsewhere there are state manufacturers associations and state chambers of commerce with some civic items in their programs but they, of course, cannot fill the bill although the New Jersey Chamber of Commerce comes pretty near it. In Ohio and in Fiew York the project of a state civic league has been in the minds of many for a long time but nothing tangible has yet been developed. In various states the National Municipal League has members enough to constitute a fairly satisfactory nucleus-ninety members in Illinois, for example-and some months ago the League’s executive committee authorized the secretary to call them together with a view to organizing a state chapter that could urge the National Municipal League’s line of reforms upon the constitutional convention; prospective change of secretaries, however, prevented action. The di5culty of getting up state civic organizations is in the fact that the members are hopelessly scattered. Committees cannot meet. Quorums cannot be mustered. No matter where you locate the office and secretary the organization forthwith may be suspiciously tarred as being a “ that-city bunch” and interest in other centers may jealously wane. A state association is much harder to organize than a city association. And sooner or later such state associations must come. Their opportunities are immense and they are likely to achieve victories more easily than local reformers ever did. But it can be done. I1 THE practice of issuing separable Supplements with this magazine has gone far enough to prove its value

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I&Y a70 NATIONAL MUNICIPAL REVIEW rather definitely already. Mr. Bassett’s admirable contribution on ‘‘Zoning” in this issue is the fifth of these pamphlets. We print an over-run of each and carry a stock on hand for which there is usually a prompt and lively demand in singles and in quantities. Mr. Purdy’s Supplement on “Assessment” is already in its third edition, paying for itself as it goes. 1x1 THE reformer and politician often represent two certain opposing types of humanity,-what Raymond Robins is fond of describing as the “indoor” and the “outdoor” minds. Robins himself is an outdoor man; so is Hoover, so was Roosevelt,-a type that progresses most rapidly when called upon to deal with people. The outdoor type likes rough and ready methods and prefers to carry his office in his hat. Such a man is unhappy when dealing with scientsc or abstract work on pieces of paper in a quiet office, or in dissecting a question of principle. He cannot read a bureau of municipal research report or install a system or stand by a precedent. To him the bureau is a flimsy camouflage for its principal financial supporter. To sell him an idea, the bureau director must tell it to him in slang. The “indoor” man on the other hand hears you talk and then asks you to write it up for him as a report. He does his best thinking in solitude and would rather write it to you than argue it, e. g., Woodrow Wilson. He excels in cold analysis and cannot reason until he has discovered a principle. To sell him an idea, convert it into a syllogism. The reformer is generally an indoor man and the politician is always an outdoor man. For most of the jobs in the modern city hall, the indoor type is superior. But for a popular representative, the outdoor man is vastly better. Most of the lawyers who argue brilliantly at the legislative committee hearing would be positively illiterate if assigned to the job of getting votes at a truckmen’s social club. The outdoor mind understands better than does the indoor mind that the best basis for persuasion is sympathy. If you would convince a stranger, spend nine-tenths of your time showing him that you and he think the same way about everything, that you are mad about the very things that exasperate him, that you are, indeed, his kind of man, and when you have thus marketed yourself to him, you can easily sell him one of your ideas. But the indoor man cannot honestly do that. His discriminations are so positive that he has to disagree even where to concede would not impair his purpose. Intolerance to a certain extent goes with his intellectuality. Moral: The indoor reformer who deals so expertly with abstract ideas should recognize that government is the art of handling human beings and that the outdoor man is an essential element in the structure. IV With this issue we absorb the SHORT BALLOT BULLETIN which for nearly ten years has been published bi-monthly by The National Short B all0 t Organization. When the NATIONAL MUNICIPAL REVIEW waa made a monthly it became as prompt with Short Ballot news as the Bulletin and since then there has been little in the Bulletin which has not been covered also, and more fully, in the REVIEW. Accordingly the April Short Ballot Bulletin is the last and in it the Short Ballot advocates are urged to subscribe to the REVIEW. RICHARD S. CHILDS.

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A CITY FOR SALE BY VICMR C. KITCHEN Strange spectacles have followed in the wake of war and not the least of these i~ the sight of an entire city of 35,000 population, Nitro, West .. .. .. .. .. .. Virginia, ofered for sale to the highest bidder. I IN France the war has ruined many cities and razed them to the ground. But in America it has caused an entire city of 3,400 buildings to spring up and flourish on flat meadow land where no structure of any kind had stood before. This city did not just “happen to grow” along cow path lines of least resistance, but was scientifically planned in advance, pipe for pipe, street for street, building for building, and then completely built as a unit by engineers of the United States government. It was planned as a great industrial center for the economical production of war supplies and to augment the greatly overtaxed capacity of already existing factories. And it was planned to include the largest number of industrial advantages-a great industrial center by purpose-not by luck. The site, for instance, was chosen at a point now known as Nitro, West Virginia-a point which represents the shortest average distance to the largest number of important cities and supply centers. And it was located on the banks of the Kanawha River in the heart of the Kanawha and New River coal mining regions, producing the finest steam and coking coal in the United States. This region was also found to be rich in natural gas and other natural resources and climatically favorable to industrial activity. With transportation charges and the cost of power thus reduced to a minimum and all other favorable factors determined in advance, the streets were laid, the factories built, workmen’s cottages and executive residences were erected, lighted, wired, piped, heated and furnished, and stores, schools, a hospital, fire houses, police station, churches, theatres, hotels, dormitories, restaurants, recreation centers and municipal buildings sprang into being. This “going” city, able to employ, house, feed, educate, entertain and protect a population of 35,000, was completed and occupied in a little less than one year. And the work began. I1 But scarcely had the wheels commenced to turn when the armistice put an end to hostilities and the need for Nitro as a government-owned property became extinct. The entire city was then placed upon the market with its 739 completed manufacturing buildings, many of them fully equipped, piped, wired and provided with railroad sidings, with its twenty miles of streets and sidewalks, its two thousand cottages for laborers, its forty-nine miles of sanitary sewers, its colossal filtered water supply, its thirty-two miles of natural gas lines, its eighteen miles of broad gauge and twenty-five miles of narrow gauge communicating railways, its four-hundred-bed hospital and twenty-fourroom school, its tremendous classification yards, its modern fire and police protection systems, its milk plant and its big department store, its store

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373 NATIONAL MUNICIPAL REVIEW blocks, clubs, Y. M. C. A. and moving picture theatres-all offered to a single purchaser. The city was purchased as a whole by the Charleston Industrial Corporation of Nitro, West Virginia. This corporation is taking advantage of the completed plants and factories, installed equipment, low power costs and other advantages, to develop Nitro as a great industrial center for manufacturers of peace time products. Again the city has been placed upon the market-a city for sale-not as an entire city, this time, but in plant or sectional units, offered to manufacturers who seek a new plant location or branch factory site where the largest number of industrial advantages are concentrated, and where problems of construction, equipment, transportation, power supply and labor housing conditions have been already solved for them. Aside from its technical industrial advantages, the city of Nitro offers an interesting study to municipal experts. Its modern school, for instance, is entirely a ground floor structure, with every one of its twenty-four rooms opening directly outdoors. Its fourhundred-bed hospital comprises a group of twenty-seven separate buildings most modernly equipped and scientifically arranged. Its filtered water supply with its million gallon sedimentation basin, pumping stations, filters and hill tanks is a model of modern engineering. Its fire stations, fire fighting apparatus, complete Gamewell alarm system, high water pressure and sprinkled buildings, have earned for it the slogan of the ‘‘best protected city in the world. ” Its municipal center, barracks, mess halls, kitchens, store blocks, ice plant, milk plant and its various types of workmen’s cottages-all are models worthy of close study by municipal students and engineers. Throughout, each section, unit and element of the city are carefully related to the central plan. Black and white elements of the population are segregated, for instance, and houses suited to various types of labor are located in the vicinity of the plants which require that type of labor. The four store blocks are situated so that one of them, at least, may be easily reached from every section of the city. Recreation centers are provided at the most convenient locations. Bus lines unite all points too distant for easy walking. Plants are tied together by a net work of intercommunication lines. And the manufacturing and residential areas are distinctly separated-the factories occupying the flat lands along the river bank, while the residences range back into the foothills. I11 Altogether it is strange to think of such a large, well planned and thriving city being offered as a “buy” to any single purchaser. It is the first complete and self-sufficient city in this country to “change” hands as an entity. It is a “war baby” abandoned by its mother and adopted by a modern business corporation for productive peace time enterprise. And it has proved to be a lusty child. The wheels of Nitro are beginning to turn again. Manufacturers were quick to recognize its unique advantages and are already moving in” to the buildings so recently vacated by the toilers of war. The taking over of Nitro was begun but a few weeks ago. Its first peace time plant, taken over by a large foundry equipment manufacturer, went into active operation in April-giving immediate employment to several hundred workers. (6

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THE NEW GERMAN CONSTITUTION BY R. COGGESHALL Harwrd Univmdg In the new republican constitution of Germany written at Weimar laat year are to be found the initiative, referendum, recall, proportional representation and municipal home rule! All, however, being more or .. .. .. leis Germanized. .. I THE constitution of the German Reich or commonwealth was framed by an elective constitutional convention which met at Weimar during the spring and early summer of 1919. It went into force on August 11 of that year. It is a relatively long document, about forty-eight pages in English translation and containing many interesting provisions, political, social, and economic. The statesmen who assembled at Weimar in the summer of 1919 evidently wished the new German republic to stand beyond doubt as the supreme power in the nation. From Prussia they had learned a bitter lesson concerning the consequences of state domination. As a result they placed exclusive” jurisdiction, or such supervisory jurisdiction as will easily become absolute, in the hands of the central authorities. The central government was given, in addition, practically unlimited taxing power, and a wide range of authority to guide the law-making authority of the states. 86 I1 The position of the central government, or government of the commonwealth, in relation to the states having been defined, thenational executive was the next problem. The president is to be ‘*chosen by the whole German peo.. .. .. .. .. .. .. .. .. .. .. .. ple” for a term of seven years. In the provision for a presidential “recall ” the framers showed political acumen as well as enthusiasm for democracy. The national assembly, or lower house, may by a two-thirds vote ask the people to recall the president, but, if the people refuse to recall him, he starts a new seven year term and the assembly is dissolved. This will prevent a hostile legislature from acting without assurance of public support. The constitution expressly provides that all orders and directions of the national president require for their validity the countersignature of a minister. “By the countersignature responsibility is assumed. ” The English tradition of ministerial responsibility is thus crystalized into words. It is interesting to note that the cabinet “will make its decisions by a majority vote. ” The national legislature is divided into two houses, the lower being known as the national assembly (Reichstag), the upper as the national council (Reichsrat) . National laws, however, are not enacted by the two houses in concurrence, but by the assembly alone. The upper house may, nevertheless, object to a law, in which case the law may be referred to the people or dropped altogether. The latter step is the only form of veto provided in the constitution-suggestive of our “pocket veto.” If, however, the lower house overrides the objection by a two

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274 NATIONAL MUNICIPAL REVIEW thirds vote, the law is either referred to the people or promulgated within three months as the president may decide. The people may initiate a bill “if one-tenth of the qualified voters SO petition.” It is provided that the constitution may be amended by a twothirds vote of both houses, or by a majority of all the qualified voters at a referendum. Under the title of “Fundamental Rights . . . of Germans”thenew German constitution contains a bill of rights. But these various rights are in almost every case seriously impaired by such phrasing as “exceptions are permissible only by authority of law. ” It is further provided that the president may suspend, “in whole or in part,” the fundamental rights set forth in specified articles. Herein lies the explanation of a recent dispatch from Berlin: “Once more Germany is under martial law, this time by order of the president, who . . . has suspended all civic liberties. ” Many provisions deal with education, the church, and the family. For instance, all private schools must be licensed and some types are forbidden altogether. The right of private property is guaranteed, as well 8s the right of inheritance in accordance with the civil law. The constitution sets up in article 165 an elaborate system of workers’ councils ranging from small, local groups to a national economic council which has the right to recom.mend legislation to the national cabinet and assembly, sending advocates to plead in person before the national assembly. This paralleling of the political organization by an economic organization is perhaps the most significant provision of the document. The storming of the Reichstag some weeks ago was incident to the debate on the factory council’s bill introduced by the national economic council. Of particular interest to the readers of the NATIONAL MUNICIPAL REVIEW will be the specific references to municipalities. In article 17 it is provided that the principles of proportional representation shall apply also to municipal elections. A residence qualification may be imposed by a state law. In article 127, it is stated that “municipalities and unions of municipalities have the right of self-government within the limits of law”-a suggestion taken from recent municipal home-rule movements in this country. In the rather elaborate provisions relating to the schools the constitution stipulates that while “the entire school system is under the supervision of the state, it may grant a share therein to the municipalities.” An English translation of the whole document, with a historical introduction, has been prepared by Professors W. B. Munro and Arthur N. Holcombe of Harvard University. It is published by the World Peace Foundation, 40 Mount Vernon Street, Boston, from whom copies may be obtained on application.

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THE OPERATION OF THE CITY-MANAGER PLAN IN WICHITA BY A. A. LONG Univsrsily of Kansas In our series of subjects of city-manager plan studies Wichita, Kansas, occupies an interesting place because it is the leading case of a city that .. .. .. .. .. .. .. .. has changed from the commission plan. I WHEN the commission form of government, which operated from 1910 to 1917, failed to rid the city of political corruption and inefficient management, there arose in Wichita, Kansas, a demand for the city-manager plan. The recall of a commissioner and the election of a successor even less desirable than the man who had been recalled demonstrated conclusively that the control and operation of the municipal government had not been removed from the damaging iduence of unscrupulous factions and groups. Even the workings of the commission itself were featured by wire-pulling and political chicanery. In the face of this evidence, the people of Wichita, led by a few spirited citizens, determined to clean house. Accordingly, during the first months of 1917, a bill was prepared and presented to the state legislature-then in session -to permit Kansas cities to adopt the city-manager plan by engrafting it upon the old commission framework. The bill became a law, and Wichita was the first city to take advantage of the provisions of the act. At a special election held on the 9th day of March, 1917, 5,551 votes were cast for and 3,473 against the adoption of the manager plan. Since the state law is somewhat vague in its terms granting to the city manager the right to appoint department heads, a supplemental ordinance was passed giving the city manager of Wichita full and complete power to appoint and discharge department heads. II At the first regular election under the provisions of the new law, Mr. L. W. Clapp, a prominent citizen, was chosen commissioner with a big plurality over any one of the four other commissioners elected, and he was immediately made mayor by the commission. The fixst commission was made up of business men who were also leaders in the community, and well known for their success in private life. Wichita was strongly influenced by the experience of Dayton with the citymanager plan, and this influence is reflected in the selection of a city manager. The Wichita board looked about for an engineer who could fill the position, probably because Mr. Waite was an engineer. The first regularly appointed city manager, Mr. L. R. Ash of Kansas City, Missouri, was chosen on his record as a successful construction engineer. He was employed at a salary of $10,000 a year. The first act under the new r6gime was the overhauling of the city hall, which was a typical example of high ceilings and empty court chambers. It was converted into a modern 05ee 975

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276 NATIONAL MUNICIPAL REVIEW [May building, giving almost twice as much floor space, and allowing for a much more practical arrangement of o5ces. In like manner, a reorganization of the entire city administration followed. The police system was placed in charge of a chief from an out-of-state city-an appointment that furnished food for no little “home rule” talk. But the new chief gave the city its first effective police system, and the reorganization of the police force broke up the rendezvous of the gang element and undermined the power of the former political ring. In fact, the old political assemblage was completely replaced by a working organization in which there was comparatively little lost motion. Careful attention was given to the subject of public improvements during the incumbency of Nlr. Ash. However, the details of the engineering problems were left almost entirely with the city engineer; and Mr. Ash himself merely consulted with the engineer on the more important matters and gave detailed advice on questjons giving rise to dispute and litigation. The construction of a big storm sewer was one of the things about which the opposition created a great deal of disturbance. Bids were advertised for on the sewer improvements to be installed, but no contractor’s bid came within $100,000 of the city engineer’s estimate. After a failure to close a contract, the city undertook to do the construction work on a cost-plus basis. The opposition attacked the legality of the proceeding; but the city won out on the question of legality, and at the same time saved the property omers $100,000 on the project. Business methods marked the Ash administration from beginning to end. Mr. Ash himself was an untiring worker, and he was not given to courting public favor or giving extended consideration to a question for the sole purpose of soothing someone’s feelings. His was a process of firing a series of questions at a complainant, securing the desired information, and then and there handing down a decision that was final. And it may be said to his credit that his decisions were usually correct, even though he often acted hastily. However, if Mr. Ash had been more considerate of the feelings of the public, he doubtless would have left a much more favorable impression with a great number of people who did not understand his rapid fire methods and became incensed at what was considered an uncourteous attitude on the part of a public o5cial. The people of Wichita, like other free Americans, were accustomed to dealing with the public official who is more concerned with his tenure of office than with the business-like discharge of his public duties. Yet, as a matter of fact, the people of Wichita are learning to appreciate their business-like government, and even many former stand-patters would be loathe to exchange the new order for the old. I11 The election of the spring of 1919 gave the opposition a chance to come back. Their first plea was that Wichita should choose a home man as city manager unless one could be secured who had had several years’ experience in a similar position. The opposition contended that surely the city could find enough “guns” within her own bounds of sufficient calibre to fill any position; for even the governor of the state had been selected from Wichita. Another claim to the effect that labor should have a representative on the commission was heard. The labor

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19201 CITY-MANAGER PLAN IN WICHITA 277 issue was probably originated by the “home rulers,” but it was astutely placed in the hands of the labor organizations for nourishment. The home rule element experienced difficulty in securing a candidate, especially a radical one, so they combined with the “laborites” and centered on one man who was designated the “labor candidate. ” He secured the highest number of votes, although he was not avowedly opposed to the old regime and afterwards proved himself to be a very congenial worker with the other commissioners. Mayor Clapp, who had supported the Ash administration at every turn, was given second to last place in the number of votes received in the election. Every commissioner, except one who was not a candidate, was re-elected. The total number of votes cast in the election was small compared with the possible voting population; the small vote was largely due to the fact that the community leaders did not take the claims of the opposition seriously and were confident of an easy victory at the polls. Upon the organization of the commission after the spring election of 1919, Mr. Clapp was re-elected mayor, and Mr. Ash was reappointed city manager. Mr. Ash had tendered his resignation just before the election, but it was only after much urging and insistence on his part that the resignation was accepted on October 1,1919, when Mr. Ash was finally relieved of his duties, Mr. Ash based his reason for resignation upon the ground that he could not financially afford to hold the position and give up his work in the private construction company of which he is a member. For several months before the final resignation of Mi. Ash, the commission made every effort to secure a new city manager who was trained in the general field of municipal work. Engineering ability was not enumerated as one of the requirements for the position. After a rather lengthy search, during which the commission failed to 6nda suitable man at the salaryoffered, Mayor Clapp resigned to accept the position of city manager himself. Mr. Clapp voluntarily reduced his salary to $6,000, with the understanding that the remaining $4,000 which would have been his, be used in the employment of an assistant city manager at $3,000 a year, and in raising the salary of one of the department heads. The new city manager is a graduate of one of our best eastern colleges. He is a man of mature years, and is experienced in matters of finance and big business. He is thoroughly versed in accounting and budget making; yet he is sufficiently liberal in training and views to appreciate the importance of every recognized field of municipal activity. He is deliberate, thorough, and well-balanced. He is accessible, genial, and courteous. Mr. Clapp has more time than his predecessor had for consideration of complaints and questions of policy; for the assistant manager, Mr. F. W. Sefton, is a master of the details connected with the operation of the office, and he is always at his post. City Manager Clapp is a “home man” and has the direct interest of the city at heart. He is independently wealthy, and is actually assuming the responsibility of the managership chiefly for the purpose of promoting the welfare of the community. There seems to be an understanding that Mr. Clapp will not continue as city manager indefinitely, but that as soon as some of the serious problems now confronting the city are cleared up, and a suitable successor can be found, he will give up the position.

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278 NATIONAL MUNICIPAL REVIEW [May IV At the time of the adoption of the manager form of government in 1917, the city of Wichita was bonded in the sum of $1,400,000, and to-day its outstanding indebtedness is $1,300,000, notwithstanding an expenditure of a normal amount for public impmvements, and of $2200,000 for the conetruction of a new forum building. The tax rate has remained at the same figure of 7.8 mills since 1917, despite the general increase in operation costs. The valuation of taxable property has increased from $65,807,214 in 1917 to $88,764,934 in 1919. The city of Wichita is confronted with some complex public-utility problems. Not a single public service is operated by the municipality. The gas situation is unsettled, and has been the source of much concern. Five cents is still the price one pays for a street car ride in Wichita, and one also pays only five cents in a jitney or motor bus. The service of the two combined is fairly good compared with the present transportation accommodations in our American cities; yet the street railway problem is demanding more than passing consideration. The water-works system is also coming in for its share of attention, and there is talk of a possible purchase of the water works by the city. The publicity feature has had a very important bearing on the experience of Wichita with the city-manager plan. The administration has never, apparently, given the question of publicity the place of importance it deserves-a failing which is certainly not peculiar to the city of Wichita. It was the feeling of Mi. Ash that a great deal of noise made by the opposition would never have had a hearing if the real truth of the conduct of affairs had been known. At the same time there is no evidence that the administration made a special effort to furnish the local papers with news concerning the numerous accomplishments of the municipal government. As a result, a great deal of “hearsay” and “presumption” found space in the news columns. The general dissemination of information about the work of the city has been left almost entirely to the two daily newspapers. Evidently few chances to air the maladministration of affairs have been passed up by the reporters. The opposition certainly cannot ascribe its defeat to lack of publicity. While the liberal policy of the papers in publishing notes on municipal affairs has served to keep up community interest at home, it has unfortunately created an erroneous impression in many quarters that the city manager experiment has been somewhat disappointing in the city of Wichita. Yet if we are to accept the audit of the substantial citizenship of the town, the experiment has proved very satisfactory. The civic consciousness of the city of Wichita presents an unusual situation. The public has learned to think in its peculiar manner. Public thought runs at high tension, accentuated by the presence of a number of civic and commercial organizations working more or less independently. There is not, in Wichita, a central chamber of commerce, or any other one similar organization that can be said to represent the public spirit and civic body of Wichita as a whole. But the factionalism of the city is geographical rather than political. In a case involving a consequential public question, the welldirected civic and commercial agencies are wont to combine and tide the city over the emergency. Wichita has grown rather rapidly during the past five years from a city of 53,582 in 1915 to a city of an estimated population of 70,000 in 1920. This

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19201 BEHIND SCENES WITH FIVE STATE BUDGETS 279 rapid growth has been due in a large part to the oil industry. There has always been a big transient population in the city, which fluctuates according to the oil development. Nevertheless, there seems to be a sufficient number of good substantial citizens to insure the continued stability of the municipal government, and the indications are that Wichita will henceforth enjoy a period of efficient administration in its public affairs. BEHIND THE SCENES WITH FIVE STATE BUDGETS BY B. E. ARTHUR A budget system may be one thing in law and quite another in practice. The budget laws of all the states we described in the August, 1919, issue. .. .. This article tells with a surprising frankness how they work. :: BUDGET System! Rather common phrase nowadays. One sees it almost daily in the newspapers. Congressmen, governors, legislators, mayors and housewives are talking about it. Mix. Smith operates her household on the budget system. Numerous cities are using it. Seven-eighths of the states have adopted it. Congress is figuring on it. Among the states three general types of budgetary procedure, differing mainly in the location of initial responsibility for the budget, have been developed. These are the “executive type, ” when the governor is responsible for the budget proposals; the commission type,” when a board composed of administrative, or administrative and legislative, officers is responsible for the budget recommendations; and the “legislative type,” when the budget proposals originate in legislative committees. Advocates of budget reform throughout the country have generally agreed that the executive type is capable of operating more effectively than the other two types and is for this reason the farthest advance in budgetary procedure. In fact, one half of the states adopting cc budget methods have expressed a preference for the executive type and have incorporated procedure to that end in their budget amendments and laws. In practice, however, the executive type of budget has in nearly every state either fallen far short of what it was intended to accomplish or has reverted to one of the other types. Impossible, you may say! But read the following episodes based upon the actual experiences of several of those states operating under the executive type of budget. NEW JERSEY About ten years ago a newspaper man came to Trenton as a member of the New Jersey legislature. It was his first venture in “politics,” and he liked it. As a newspaper manager he was regarded a success, but he had a sneaking notion that he might be even more of a success as governor. However, to aspire to that office he must do something to distinguish himself among his “fellow citizens. ” The financial reports showed that an unsatisfactory condition existed in the state which

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280 NATIONAL MUNICIPAL REVIEW [May was gradually growing worse instead of better. Here was his opportunity to make a reputation; he would advocate the adoption of a budget system and other business methods. To this end he said much about regarding the governor as the state’s “business manager,” and proposed in 1916 a bill authorizing the governor to prepare and present the budget to the legislature. This bill was duly enacted into law. The governor, then in oEce, belonged to the party in opposition to that of the sponsor of the budget law. His term of office did not expire until during the next regular session of the legislature following the one at which the budget law was enacted. In the meantime, the opportunity came to the champion of the budget system to become candidate for governor. He ran and was elected mainly upon the strength of having fathered budget reform in the state, although the scheme was yet untried. As oftentimes happens in the best laid schemes, the budget law contained, perhaps inadvertently on the part of the author, a provision which worked practically the undoing of the whole project. The budget was to be prepared by the governor and presented to the legislature at the beginning of each regular session. That is, the outgoing administration was to make up the budget for the in-coming administration-the retiring governor was to prepare the budget for the new “business manager, ” the governor-elect. Although the old governor was without the necessary information properly to prepare the budget and did not care to perform the task in the closing days of his administration, he nevertheless did it mainly because it offered a splendid opportunity for him to concoct a pill for the opposing party and the new administration. He found certain satisfaction in showing up the muchlauded budget reform! When the governor-elect came into oEce he informed the legislature (in which his party was in the majority) that he objected to taking the financial prescription proposed by the retiring governor. The result was that the legislature discarded the old governor’s proposals and prepared a bill authorizing expenditures in accord with the wishes of the majority party in the legislature. This bill the new governor approved. While admitting that the budget system did not work as effectively as it might have if the governor had been in agreement with the majority party of the legislature, he nevertheless regarded it as a great step forward in the state’s financial procedure. Certainly the legislature could not be blamed for rejecting such recommendations as the retiring governor had made! Just wait until he had an opportunity to prepare the budget and then the people would see it work effectively! In due season the opportunity came, but in the meantime new political aspirations had seized the attention of the “ business-manager ” governor. While the law required him to prepare and submit the budget to the legislature, he did not care to be solely responsible at that time for deciding several important issues in the spending program of the state. In his day dreams he saw the national capitol arise before him. He must not do anything, he must not make any financial recommendations that would keep him from realizing this dream! He must devise some means of shifting or diffusing the responsibility and at the same time of enabling him to present a budget to the legislature that would forestall any annoying criticisms on the part of that body. This was his scheme: he appointed a committee, composed of a few of the leading legislators who had served on the joint appropriations com

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19!20] BEHIND SCENES WITH FIVE STATE BUDGETS 28 I mittee and who would be members of the next legislature. This committee, together with two administrative oEcers appointed by the legislature, sat with him in the review of the estimates and assisted him in the preparation of the budget. The budget recommendations, as submitted to the legislature, were the result of a compromise of opinions and interests. When the budget was presented to the legislature it was referred to the joint appropriations committee, the most influential members of which had concurred with the governor in the financial recommendations which it contained. Only a few changes were made in the proposed appropriations; all interests had apparently been satisfied in the making up of the budget. There was no discussion or criticism of the budget plan in the legislature. None seemed necessary; the possibility of criticism had been practically eliminated by previous agreement. The budget was adopted by the legislature as it had been proposed. Forthwith the governor proclaimed it a great triumph for the “executive budget” principle. The sequel was the early realization of his dream-a seat in one of the marble halls of the national capitol. And so men rise on stepping stones of budget systems to higher things.” For New Jersey the executive type of budget has reverted to the commission type in which members, or representatives, of the legislature control the preparation of the budget. Responsibility for the budget plan is not fixed. The legislative practices and procedure remain practically the same as before the adoption of the budget law. 66 MARYLAND In 1915 Maryland had a milliondollar deficit in her treasury brought about mainly through the uncontrolled action of the legislature in passing appropriation measures. A commission was appointed to study the financial situation, and after investigation recommended the adoption of a budget system. As a result of this recommendation a budgetary procedure was written into the constitution,-Maryland being the first state in the Union to make such procedure a part of its organic law. Under the provisions of this amendment the governor is required to prepare the budget and to embody his proposals for appropriations in a bill. When these documents are submitted to t$e legislature it must act upon the governor’s bill before considering any other appropriation measures. It can only strike out or reduce items in the governor’s bill, and cannot initiate appropriation measures except they are limited to a single object and carry the revenue to meet the proposed expenditure. The governor is permitted with the consent of the legislature to amend or supplement his bill after it has been submitted to that body. How did this procedure work out? When it came to preparing the first budget the governor was in a quandary; he was without adequate information or necessary help to prepare the budget. The administrative organization was so decentralized as to place him in a position where he had practically no control over the sources of budget information. No provisions had been made for a staff or even for the employment of a single budget assistant. Fortunately, the governor was not without experience in the financial affairs of the state government, since he had been comptroller preceding his election as governor. In casting about for help to put the budget documents in shape for the legislature, he was able to engage the services of a single person who began assisting him about six

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weeks prior to the date set by the constitution for submitting the budget to the legislature. During this time the estimates were gathered, hearings were held, the estimate data were checked up, the budget was compiled, and the bill containing the governor’s expenditure recommendations was prepared. The information upon which the budget recommendations were based was not only unsatisfactory owing to its meagerness, but in a number of instances was inaccurate and even misleading; and there was no time to check it up by field investigations. As the day drew nearer for the presentation of the budget to the legislature, there was an increasing evidence of feverish haste in the executive office. Finally, the completed documents went to the printer about forty-eight hours before they were due to be presented to the legislature. It was impossible to print them in that length of time, so the legislature rather reluctantly agreed to extend the time for submission one week. The governor heaved a sigh of relief! At the end of this extended period the budget documents were printed and submitted to the presiding officer of each house who referred them to the appropriation committees. As in preceding years numerous requests for appropriations were filed with the appropriation committees. Many of these the committees felt should be allowed. But how were they to do it? Each item would require a special act which must carry the revenue to meet it, unless provision could be made to include it in the governor’s bill. To pass a lot of small appropriation bills each imposing a fraction of a mill tax upon the property of the state would embarrass the members of the legislature. These items must be included, if possible, in the governor’s bill! The committees could not increase or add new items to this bill, 28% NATIONAL MUNICIPAL REVIEW [May but the governor had the power to amend it. This offered a solution; so they confronted the governor with the matter. They told him that his estimate of the anticipated revenues was conservative and that he might easily increase his proposed expenditures. To add to the governor’s embarrassment some of the independent departments and agencies of the administration, not being satisfied with his budget allowances, went over his head and laid their complaints before the members of the appropriation committees. What could the governor do? He did not have the authority to forbid such action. As is to be expected, these departments and agencies found supporters in the legislature who demanded of the governor that he revise their budget allowances. Since he needed the political support of these members of the legislature he yielded to their demands and amended his budget recommendations by submitting two supplementary budgets to the legislature. Thereupon the legislature passed the governor’s bill. It was satisfied with the bill, since he had met its demands and at the same time saved it the embarrassment of having to resort to the passage of supplementary appropriation biUs which would have imposed additional taxes on the people. But this was not all. There were a few bills appropriating for local purposes which needed to be taken care of. Again the legislature did not propose to levy special taxes for these purposes. So a ruling was secured from the attorney general to the effect that there would be no violation of the budget amendment if such appropriations were paid out of the balance in the general fund remaining in the treasury at the beginning of the period covered by the governor’s budget. In this way these bills were met without the laying of special taxes. Just what

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19520] BEHIND SCENES WITH expedients the legislature may use in the future in getting around this constitutional restriction remains to be seen. But our story does not end here. Why should it? Is not the carrying into effect of a financial plan as important, if not more important, than the making of it? The money appropriated must be expended for services and supplies, and these must be made to achieve results if the budget plan is to be carried out. Undoubtedly the governor is the one individual to have supervising control over the execution of the plan. While the Maryland budget amendment requires the governor to prepare the spending plan, it does not place him in any better position than he was before the adoption of the amendment for effectively carrying out this plan. The administration is in the same chaotic condition, and administrative authority is by no means centralized in the governor. He is still merely one of a number of governors, each one directing work and making expenditures independently of the other. There is no central administrative agency to check up the results and thereby currently to gather the information needed in the preparation of the budget. In short, the expenditure procedure remains the same as before the budget system was adopted; contracts are let, purchases are made, services are employed as before without any central supervision or control. When the governor got his budget recommendations approved by the legislature he went back to the routine work of his office as though all budget problems had been settled until the next session of the legislature came around. He concerned himself very little with expenditures outside of his own office. It was left to the comptroller’szoffice to exercise control over the expenditures of the numerous adP FIVE STATE BUDGETS al33 ministrative agencies by a sort of postmortem examination. The character of services rendered, the quality of supplies procured, the results &ally achieved were never taken into consideration; only the question of whether or not the expenditures had been made in accordance with the provisions of the appropriation act was considered. The governor’s office made no attempt to gather information with reference to the expenditures, the revenues and the work of the various state agencies to be used in the preparation of the next budget. In fact, it was not equipped for this purpose. Furthermore, the governor did not expect to succeed himself in office; the next budget would be prepared by his successor. Why should he trouble himself to gather budget information for the next governor? If the legislature expected him continuously to bring together information to be used in preparing the budget, it should have provided him with a staff. The new governor would have thirty days after his inauguration in which to prepare the budget; he could “dig up” the information he needed during this time. In due time the new governor was elected. Again it was fortunate for the state that a man was chosen for this office who had previously filled an important state office and who knew considerably about the financial needs of the government. Had he come up “green and untutored” from an agrarian section of the state, as sometimes happens in the choice of a governor, it would have been an absurd situationa month in which to prepare the budget without any knowledge of the subject, without the necessary information and without the proper assistance! Of little avail under such circumstances would be the most profound knowledge of the propensities of a gray mule or the habits of a summer squash! The

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284 NATIONAL MUNICIPAL REVIEW [May new governor was inaugurated the week after the legislature met in regular session. He had thirty days under the provision of the budget amendment in which to prepare the budget and present it to the legislature. Immediately he put his clerks to ransacking the executive office records, but they were found to be almost as devoid of budget information as Mother Hubbard‘s cupboard of canine provisions. A few estimates were coming in each day from the various spending agencies. With the meager information contained on the estimate sheets and with the help of his o5ce force, or whatever temporary assistance he might be able to secure, he was required to prepare within thirty days the state budget covering a period of two years and involving a total expenditure of almost twenty-eight million dollars! Almost an impossible situation to be in, but he did it and did it creditably well. Under the same circumstances perhaps nine governors in ten would have failed. Obviously, several things are needed to make the Maryland budgetary procedure work effectively. To enable the governor to prepare the budget he should have a permanent staff working under his direction and engaged in gathering budget information throughout the year. In budget making, future needs are determined largely upon the basis of past experience. The administrative organization should be changed so as to centralize executive control in the governor; without this the governor is not the real executive of the state and cannot speak to the legislature as the final authority on budget matters. As long as the state government is composed of a hundred more or less independent units and agencies, each practically free to importune the legislature for appropriations, some way will be found to grant their requests although the power to initiate appropriation bills drawing directly upon present or anticipated funds of the state treasury may be denied to the legislature. Anyhow, the legislature cannot be completely deprived of its power to determine policy; and so long as it enjoys the exercise of this power it can enact laws that will involve the expenditure of money without any direct appropriations being made. The effect is the same. What is needed is control established through responsible channels, and this control should be brought about by positive rather than by negative action. OHIO The Ohio budget law, enacted in 1913, requires the governor to present the budget to the legislature. The governor has a budget commissioner, employed the year around to assist him in the preparation of the budget. So far, very good, but for constitutional reasons the budget law does not prescribe any procedure to be followed by the legislature in handling the governor’s budget. Naturally, the legislature employs the same procedure that it used before the adoption of the budget methods. What happens to the governor’s budget when it is submitted to the legislature and how does that body consider it? There is an appropriation committee in each house to which the governor’s budget is referred when it is submitted. Besides the appropriation committees, there are two committees in each house concerned with the raising of revenues and the settling of claims. These six committees, acting independently of each other, are charged with the consideration of the complete expenditure and revenue programs of the state. Each proceeds to report out bills and to make

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19901 BEHIND SCENES WITH recommendations to their respective houses without co-operation and with very little knowledge of what the others are doing. The personnel and work of one of the appropriation committees of a recent session is interesting. It was composed of fifteen members, three of whom had been members of the committee during the preceding session of the legislature. By profession there was a veterinarian, a farmer, a florist, two lawyers, an apiarist, a merchant, a pharmacist, a real estate agent, a broker, an insurance agent, an automobile dealer, an electrician, a dentist, and a dog fancier. HOW eminently fitted by experience and general qualifications for the work in hand! This committee was to determine for the next fiscal period, and perhaps for many years beyond that, the expenditure policy of the state. So with a show of gravity it proceeded to the task set before it. The “horse doctor” was made chairman of the committee. He instructed the committee’s clerk to inform the institutions over the state that the august body-the appropriations and finance committee of the house-was about to make its usual round of visits to determine appropriation needs. An itinerary of the junket was carefully made out, the time allotted to the inspection of each institution depending largely upon its past reputation for serving refreshments. The quality of the reception-fatted calf, Havana cigars, and good storiesusually indicated the extent to which the institutional head thought he ought to have an increase in his appropriations. Perhaps the institutional head did not care to present his claims in this manner, but he must “do as Rome does.” If the committee spent two and one-half hours at an institution, it would put in two hours eating, smoking and telling yarns, and the remaining FIVE STATE BUDGETS 285 half hour looking around the plant. Thirty minutes each biennium spent in surveying the expenditure needs of a million dollar institution by a committee of such eminent qualifications! The junkets concluded, the committee returned to the capitol and held a few hearings at which certain individuals appeared who did not think they had been treated fairly by the governor in making his budget allowances. A generd appropriation bill was then drafted embodying such of the governor’s recommendations as the committee saw fit to include and whatever other expenditures seemed necessary as a matter of political expediency. This bill was introduced during the final week of the legislative session; it was jammed through the house without any debate and sent to the senate. Here it was referred to the senate finance committee, which looked over it with a critical eye and not finding provisions for appropriations to some of the things deemed “necessary to the welfare of the state” proceeded to amend it. The bill was reported out and passed the senate with amendments. Thereupon it was sent.back to the house which refused to concur in the amendments. Something had to be done immediately, as it was the last day of the session. A conference committee was appointed and after a hasty session the bill was revised to include practically all of the claims of both appropriation committees. In this form it was accepted by both houses of the legislature just as the hands of the clock approached the hour set for final adjournment. During the last week of the legislative session a score of bills carrying special appropriations amounting to several millions were passed by the legislature. These, together with the general appropriation bill, and a sundry claims bill were sent to the gov

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286 NATIONAL MUNICIPAL REVIEW [May ernor. Nobody knew what the total appropriations would be until the governor had approved all bills, which he did not have to do until ten days after the adjournment of the legislature. Yet the taxation committees of the two houses prepared measures designed to raise revenues to meet expenditures the total of which was unknown at the time the revenue measures were passed by the legislature. The budget plan of the governor was destroyed by the independent action of the six committees and the archaic and unbusinesslike procedure of the legislature. Obviously, if the bicameral system is to be continued in our state legislatures, there ought to be a joint committee of the two houses which would be charged with the consideration of both revenues and expenditure needs, and this committee ought to be composed of men who have had some experience in financial matters-who are not merely dog trainers or horse doctors. The procedure of the legislature should be such as to insure publicity in financial matters and the orderly handling of all revenue and appropriation measures. Finally, the administration ought to be so organized as to give the governor control over the agencies expending the appropriations that he may be able to carry out the budget program. What was the result? MASSACHUSETTS The people of Massachusetts, after a hard-fought struggle for improved financial methods and procedure, adopted in 1918aconstitutional amendment providing a budgetary procedure which was designed to place squarely upon the governor the responsibility for the preparation and initiation of the budget. The administration was reorganized with a view to giving the governor fuller control over it, and the governor was furnished with a staff agency to assist him in the preparation of the budget. It seemed that everything had been provided to insure the effective working out of the budget system. That extravagant and irresponsible body-the legislature-was no longer to be in a position to squander the people’s money! The governor, responsible directly to the people, would make up the budget plan and the legislature would 0. K. it. Very fine; but listen how the system actually worked out. The governor gave very little time or attention to the preparation of the financial plan. One clerk of his staff agency was responsible for all the details and most of the policies of the plan. The statement, or message, explaining the 1920 budget was not even written by the governor. He merely wrote a prefatory note of a dozen lines in which his only positive recommendation was that the state tax should not be made to exceed a certain amount. In order that it might not exceed this amount the budget carried a recommendation to divert certain funds in the state treasury, which had originally been raised by bond issues for capital purposes, to the payment of current expenses. Anything to “get by” without facing the actual situation and the inevitable increase in the state tax burden! Why? Because of the popular feelings on the subject and the effect this would have upon the political future of the governor. The confidence of the people in his administration must be retained, and the easiest way out was for him to “pass the buck” to the legislature. This he did; and for once the “discredited and extravagant ” legislature arose to the occasion, for once it became the “watch dog” of the treasury. It demanded of the governor why he indorsed such budget recommendations. The story got into the newspapers and

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19901 BEHIND SCENES WITH FIVE STATE BUDGETS 287 editorials were written on the budget proposals of the governor. At length the attorney-general decided that the governor’s proposal to increase the state’s revenue accruing to the general fund by diverting certain other funds was illegal under the provisions of the constitution. The governor was forced into the corner and compelled to submit a revision of his budget to the legislature. While this document met most of the criticisms of the legislature, it is clear that the governor did not assume leadership, but left the determination of the budget program largely in the hands of the legislature. How to remedy such a situation, as the above, without merely enduring it to the end of the governor’s term is a nice little problem for speculation on the part of the advocates of the “executive budget. ” VIRGINIA In all states the governor is known as the “chief executive,” a term which implies full power and authority to control the administrative organization. But in no state is this meaning of the term true. It seems absurd to try to fix responsibility upon the governor for budget-making and for carrying out the financial program when his position is such that he cannot control the organization with which he has to do the work. The administrative branch of the Virginia state government may be taken as an example of the decentralized and irresponsible organization over which the governor is supposed to exercise supreme executive authority. The governor is elected by the people for a term of four years. The lieutenant governor, secretary of the commonwealth, state treasurer, attorney general, superintendent of public instruction, and commissioner of agriculture are also elected for terms equal to that of the governor. They are practically co-ordinate in power with the governor since they derive their authority from the same source-thepeople. The auditor of public accounts is elected by a joint vote of the two houses of the legislature for a term of four years. The governor with the approval of the senate appoints a commissioner of state hospitals. Then there is the state board of education, composed of the governor, attorney general, superintendent of public instruction and three members selected by the senate every four years; the board of agriculture and immigration, consisting of one member from each congressional district appointed by the governor with the senate’s approval for four years and the president of the Virginia Polytechnic Institute ex officio; the state corporation commission, composed of three members appointed by the governor with the confirmation of the joint houses of the legislature for overlapping terms of six years each; the board of directors of the state penitentiary, etc., consisting of five members appointed by the governor with the senate’s approval for overlapping terms of five years each; a board of directors for each state hospital made up of three members appointed by the governor with the approval of the senate for overlapping terms of six years; and a general board of directors composed of all of the hospital boards of directors which appoints a superintendent of each hospital. All of the foregoing oacers and boards are provided for in the state constitution. Then there are almost a hundred statutory offices, boards, commissions, departments, bureaus and other agencies. The controlling officers of these are in only a few cases wholly responsible to the governor either for their appointment to office or for the conduct of their

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288 NATIONAL MUNICIPAL REVIEW work. The governor has only a very limited power to remove administrative officers. Not only are the administrative agencies widely scattered, but the main functions of government are not co-ordinated. There is much duplication of effort and overlapping of work. Recently a committee on economy and e5ciency was appointed and made a survey of the state government. It reported “general disability” of the government due to chaotic administrative organization, decentralized accounting methods, existence of fee system, and lack of civil service and centralized purchasing. Then it recommended the adoption of a budget system as the remedy. The plan it proposed, in which the governor would be responsible for preparing and submitting the budget to the legislature, was adopted. No definite move has since been made to reorganize the government. Apparently an executive budget system is expected to work under such conditions as now exist in Virginia! Even if the governor were placed in a position to control such a ramshackle administration, he would not be able to secure anything like the proper service from its operation. The working of such a governmental machine will defeat the purposes of any system of budget control no matter how well it may have been devised. ***** What are the general conclusions? An effective budgetary procedure does not result automatically from the mere passage of a law or a constitutional amendment providing for the establishment of such procedure. It is a process depending for its success upon the organization, relationship, personnel and practices of the different units and branches of government. An e5cient state budget system cannot be developed in a month or a year, but it is a matter of evolutionary changes in governmental organization, habits and methods. Such a system requires that the state administration be reorganized so as to centralize executive authority and responsibility in the governor; that the committee organization and the procedure of the legislature be changed so as to provide for open consideration and criticism of the budget plan as a whole; and that modern business methods and practices be adopted in the purchase of services and supplies and in the audit and control of expenditures.

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HE EXPULSION OF THE SOCIALIST ASSEMBLYMEN AT ALBANY BY H. W. DODDS Secretary, NdWd Yunicipal League OUT new secretary happens to be the teading American authority on .. .. .. .. .. .. .. .. .. .. .. legislative procedure. : : .. REPRESENTATIVE GOVERNMENT AT ALBANY IT is commonly accepted that violence settles nothing and that the progress of a man has been marked by the substitution of reason for force. Accordingly the development of the state supplanted self-help and private vengeance with a political and judicial machinery for settling civil difficulties. Traces of the ancient blood-feud survive only in modern lynch law, which meets general disapproval. The prime function of early government was to keep the peace and methods were secondary. Clearly at that period government was the dictatorship of a minority. Developing political instincts, however, have given us representative government on a democratic basis. It is true that some deny the democratic nature of modern government, insisting that what we have in fact is a dictatorship of capitalists. To this they would oppose the dictatorship of the proletariat, a return to force and lynch law, to the dictatorship of a minority. But there are other ways of exercising force than by naked violence. All coercion is not physical. For example, those in control of government for the time being, may use the instruments of government as veiled force to serve their own ends. Take the case of John Wilkes. Here was an effort to meet an issue by force. THE FAMOUS CASE OF JOHN WILKES George I11 was determined in his narrow-minded way to exalt the kingly office. By threats, patronage and manipulation of elections he was enabled to subdue Parliament. The subservience of Parliament caused wide discontent and some riots, and the king’s ministers therefore began to assert the supremacy of Parliament against the nation. But the newspaper was coming into influence and the rising press became the court of appeal from a usurping Parliament. John Wilkes, although a member of the House of Commons, made his paper a leader in violent attacks on the secrecy of the proceedings of Parliament. He stoutly maintained the responsibility of members to the country and the right of a free press to publish and criticize their actions. For this he was thrown into jail in 1765 on the charge of seditious libel of the king’s ministers, but he was released under the immunity of a member of Parliament. That body, however, under the spur of the king’s vengeance, branded Wilkes guilty of seditious libel and denied that the privileges of members extended to this offense. Ordered to appear before the House, he fled to Paris, whereupon the House expelled him. The popular resentment was great and “ Wilkes and Liberty” became the cry. Five years later he returned and

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290 NATIONAL MUNICIPAL REVIEW [May was elected again to Parliament. Upon the demand of the king he was again expelled on the old charge. It cannot be doubted that the House of Commons had the legal power to expel members for offense, but seditious libel was a charge cognizable by courts of law. Accordingly the people believed that Wilkes should have been tried by the courts and if guilty punished, but that the action of the House denied him fair trial and was therefore unjust and oppressive. So Wilkes was again elected and again expelled. Declared incapable of being elected, he was immediately elected for the fourth time and had now become the people’s idol. Under such great pressure Parliament was compelled to yield to the right of popular criticism. Wilkes was again elected to the House in 1774 and was admitted. In 1783 the House declared void his earlier expulsion as being “subversive of the rights of the whole body of electors. ” To this day the resolution of 1782 stands as a warning against abuse of power by a vindictive body, and the precedent is well established in England that conviction for crime in the courts must precede expulsion by the House on criminal charges. Naturally enough, Wilkes, never an able man, being no longer a martyr, dropped into obscurity, but Parliament’s trial of force had failed, and republican government emerged from the conflict. JANUAFtY 7 AT ALBANY A “trial” has been concluded in Albany which will test skverely American theories of representative government, and the outcome cannot help but have a definite bearing upon our ability to work out present problems by political means. On January seventh, after the house had been organized and the officers elected, the speaker of the New York Assembly suddenly and without warning ordered the sergeant-at-arms to conduct the five Socialist members to the bar of the assembly. The speaker then read an address in which he charged them with belonging to a party disloyal to our government and having been elected on a “platform that is absolutely inimical to the best interests of the state of New York and of the United States.” The men were then allowed to return to their seats, whereupon the majority floor leader introduced a resolution, couched in strong language, asserting that by their membership in the Socialist party of America they had opposed the organized government of the United States, and asking that the matter of their exclusion from the Assembly be referred to the judiciary committee thereafter to be appointed by the speaker. The resolution was accepted as privileged and at once adopted without opportunity for debate. Members who voted in the affirmative criticized later the precipitous procedure which did not permit them to acquaint themselves with the circumstances. After the passage of the resolution the speaker ordered the sergeant-at-arms to conduct the five members out of the Assembly. To them the ceremony was unnecessarily humiliating and was obviously designed to impress all present with their guilt. THE TRIAL BEFORE THE COMMITTEE At the beginning of the hearings the chairman of the judiciary committee announced that the defendants would be given a fair trial under the rules of the supreme court of New York. Counsel made clear, however, that in the opinion of the committee the five assemblymen were there “as a matter of grace.” “These gentlemen,” he stated, “are entitled to no representa

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19201 EXPULSION OF SOCIALIST ASSEMBLYMEN 29 1 tion, and this committee itself could go ahead in secret and take testimony and report to the House and upon that report expulsion could be had and no one could complain.” “There is no court,” he continued, “that can question the Assembly’s power or criticize its motives. For the defense to complain that their case was being tried by a committee appointed by the speaker who had instituted the proceedings, that the committee was acting as accuser, judge, and jury, and that the trial could not be fair because of the previously expressed bias of the chairman and committee, was to deny the inherent power of the legislature to pass on the qualzcations and eligibility of members. ’’ In other words the orderly, due process of law by which guilt and liability are usually determined is not binding upon the legislature. Historic, time honored principles of Anglo-Saxon fairness may be disregarded with immunity. The trial reached its end in March. Some arbitrary rulings on procedure were made by the chairman and much testimony admitted on the subject of socialism, bolshevism, religion, the family, private property, et cetera, which would have been ruled out in a court as hearsay, irrelevant and incompetent. Pleadings were never really joined. The defense was denied the right to make certain admissions in order to narrow the issues; and the obvious conclusion must be that the purpose of the committee was to leave open to witnesses the wide fields of religion, politics and economics in an effort to arouse popular indignation against the doctrine of the socialist members. The original resolution of the Assembly as well as the charges prepared by the committee as the basis of action were general and indefinite and not accompanied by specikations such as would enable the defense to prepare an answer. It was generally understood around the capitol that this was a drive on socialism which was good politics at present and it was in this atmosphere that all discussions about the church, the family, property, were carried on. At the end of March, just late enough so that there could not be a new election to fill the vacancies, the committee reported in favor of expulsion and despite a vigorous opposition, led by young Theodore Roosevelt and others, the five Socialists were expelled by a large bi-partisan majority. By waiting until this date the question contingent upon the re-election of the same men was avoided. THE LEGALITY OF IT Regarding the legal competence of the legislature, the committee was absolutely right. The power to judge of the eligibility of members is a legislative privilege the exercise of which no court will review, no matter how arbitrary or unjust the action. As far as legal responsibility is concerned the committee could conduct their proceedings in secret under any rules of their choosing. Yet the recent hearings, biased as they were, were a great improvement over the methods followed in contested election cases in some of the trials of qualifications of members of congress. In these matters of prerogative the legislative bodies are a law unto themselves. The principle is that the legislature in the exercise of its necessary functions must be free from control by any outside department of government. It is responsible to the people alone. It is not strange that a soverign body should occasionally become arrogant in the use of summary power and deny the binding force of due process in judicial proceedings, but the courts have consist

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2% NATIONAL MUNICIPAL REVIEW May ently refused to share in the decision of questions of privilege. Historically this is a very ancient doctrine. In the early days the House of Commons maintained its dignity with difficulty. The king tried to keep it a mere ratifying body and to this end his ministers and judges sought to determine the discussions and membership of the House. Privileges such as freedom of speech in Parliament and uncontrolled election of members came only after hard fights. Against the royal prerogative was levied the “Ancient Privilege of the Commons. ” It was a real victory for representative government when Parliament proclaimed that the judges of James I could not exclude Sir Francis Goodwin, having been regularly elected. It is one of the curious developments of history that a principle employed to protect the representatives of the people against coercion and intimidation by an autocratic power should to-day remove them from all legal liability in contesting the expressed will of the voters. But is it not possible that this power of legislative self protection in the hands of a majority may be turned against the very fundamentals of representative government? Inflated with a sense of power, the majority may use its legal prerogative to eliminate an unwelcome minority. This is one method of “direct action. ” James I had the idea. “None,” he said, “ shall presume henceforth to meddle with anything concerning our government or deep matters of state. ” And surely his Lord keeper could not have been thinking of the speaker of the New York assembly when he addressed Parliament: “His Majesty’s pleasure is that if you perceive any idle heads that will not strike to hazard their own estates, which will meddle with reforming the church and transforming the commonwealth and do exhibit any bills to such purpose, that you receive them not until they be viewed and considered by those who it is fitter should consider of such things and can better judge of them. ” TRYING THE SOCIALIST PARTY In accordance with the expressed purpose of the judiciary committee, the doctrines of socialism have been given a thorough airing. Although the complaint charged that the Socialist party was a conspiracy to overthrow our government, counsel for the Assembly specifically repudiated the theory that it was incumbent upon a legislative body to await the judgment of the criminal courts before action on its part. For this there is good precedent in congress. The resolution which instituted the proceedings recounts that the Socialist party of America has declared its solidarity with the Soviets of Russia and is thereby pledged to the forcible overthrow of all organized governments now existing; and that members of the party agree to be guided by its constitution and platform and when elected to public office are liable to expulsion for failure to carry out the instruction of the dues paying party organization given by an executive committee made up in whole or in part of aliens. The resolution further accuses the party of disloyalty in the war and inaccurately concludes that as an organization it was convicted of violation of the espionage act. It was, therefore, resolved that members of this party be denied seats in the Assembly pending investigation. In opening the hearings before the judiciary committee, the chairman somewhat amplified these charges. “The Socialist party, ” he said, “proposes to substitute minority for majority rule by force if necessary. The five members in ques

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19201 EXPULSION OF SOCIALIST ASSEMBLYMEN a93 tion personally opposed the successful conduct of the war and.gave aid and comfort to the enemy.” They are accused also of being engaged with others in a conspiracy “to subvert the due administration of law and to destroy the right to hold and own property honestly acquired, to weaken the family tie which they count is the seed of capitalism, to destroy the influence of the church and to overturn the whole fabric of a constitutional form of government.” The catalog is nothing if not complete. Some of the counts could be made the basis of criminal charges. The others were considered relevant because in excluding persons as lacking the qualifkations of members it is not necessary to prove criminal conduct. The specific statements of counsel for the committee, as well as the nature of the testimony, reveal that the investigation was intended to touch upon the loyalty of the Socialist party to our form of government and their purpose to overthrow it by parliamentary means if not by violence. The real issue at Albany was whether members of a party which avows a purpose to do all in its power by lawful means to bring about a fundamental change in our economic order are to be disqualified from membership in American representative assemblies. If this question be decided in the negative, the accepted American tradition, that the proper place to attack undesirable party principles is at the polls and that the decision of the ballot shall be final, is destroyed. THE CONDITION OF SOCIALISM IN AMERICA It is only natural that many people should be intensely suspicious of the present Socialist party. Its members have passed resolutions and made statements which have been considered inflammatory and seditious. Although the leaders may have in mind a program of evolution, there has been considerable talk about “ revolution ” and “mass action,” and some talk about “bullets. ” The customary phraseology of so-called scientifk socialism, familiar to all students of the subject, suggests the Terror to many normal citizens. For the popular confusion between the program of evolutionary socialism and that offered by the disciples of violence and terror, the leaders of the present Socialist party are much to blame. Sound political judgment would have served them better. It is generally understood that the present Socialist party is more radical than it was before the war. Following the adoption of the anti-war resolution at the convention in St. Louis, in 1917, the party was deserted by a number of influential names, leaving control to what had formerly been the left wing. This resolution proclaimed the party’s “unalterable opposition to the war just declared by the government of the United States,” and called upon “the workers of all countries to refuse support to their governments in their wars.” The next convention of the party was not held until August, 1919, at which time the pro-war Socialists were read out of the party. “We unreservedly reject, ” reads the manifesto of 1919, “the policy of those Socialists who supported their belligerent capitalist governments on the plea of ‘national defense’ and who entered into demoralizing compacts for so-called civil peace with the exploiters of labor during the war and continued a political alliance with them after the war.” The party on this occasion repudiated the recent Berne conference, at which the moderates tried to revive the Second International, and called for a reconstituted international open to

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294 NATIONAL MUNICIPAL REVIEW [May the Communists of Russia and Germany but closed to those who had co-operated with bourgeois parties during the war. The minority report of the committee on international relations recommended that the Socialist party join the Third (Moscow) International which met in March, 1919, under the auspices of the Russian Communist party. The matter of the American party’s allegiance to the Third International at present awaits the referendum vote of the rank and file. To date it has not joined the Third International, although the Assembly committee claimed that by expressing solidarity with the Russian Soviet Republic they had in fact ratiiied the manifesto of the Third Intemtional. Beyond a doubt in the mind of the writer, the Socialist party spiritually inclines to the principles enunciated by the Moscow International, which repudiated the “narrowmindedness, opportunism and revolutionary impotence” of those moderate leaders who are trying to reconstruct international socialism along pre-war lines. Many orthodox Socialists believe that the Third International renounced parliamentary activity although this is denied by some present officials of the party. Its manifesto, however, did introduce a new term, namely the dictatorship of the proletariat. The proletarian state, it asserts, is like every state an organ of suppression but after the opposition of the bourgeoisie is broken, it is gradually absorbed into the working groups; the proletarian dictatorship then disappears and finally the state dies and there is no more class distinction. This is the philosophy of syndicalism and the American socialism of to-day has been strongly influenced by it. The leaders seem to accept the general strike as a political weapon, but it is doubtful if a single person of influence in the party approves the more violent methods of syndicalism or accepts. other means than political action. THE LEFT But there are parties in the United States which do advocate violence and bloody war. American socialism has recently undergone a schism with the result that two groups have broken off from the parent party and have formed the Communist party, composed largely of the seven Slavic federations which had helped to make up the older party, and the Communist Labor party respectively. These last two hold frankly to an ultra-revolutionary platform including the dictatorship of the proletariat. They also eagerly accepted the pronouncements of the Moscow International. The platforms of both assert that the class struggle is essentially a political struggle, but ultimate hope seems to rest in the “mass strike,’’ the use of parliamentarism being “only of secondary importance. ” Yet when all is said and done there remains a fundamental difference between the Socialists and the Communists. The Socialist party yet accepts parliamentary action as the effective and desirable means of waging the class struggle, while the Communists have repudiated political methods in favor of the dictatorship of the proletariat. In the number of dues paying members, the two Communist parties exceed the Socialist party; and it must be clear to all that if the elected representatives of the latter are denied seats in our legislatures, the Socialists will desert to the Communists who are bent upon duplicating in the United States recent Russian experience. The New York Assembly, in company with large groups of citizens, has confused the programs of the two parties.

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19201 EXPULSION OF SOCIALIST ASSEMBLYMEN 295 CAN THE LEGISLATURE EXCLUDE ALL SOCIALISTS? It is still a matter of debate whether a representative body in judging of the eligibility of members can impose qualifications in addition to those appearing in the constitution. The federal constitution reads : << Each House shall be the judge of the elections, returns and qualifications of its own members,” and “Each House may . . . with the concurrence of two-thirds expel a member. ” Similar provisions occur in most state constitutions although the New York constitution ‘omits mention of the power to expel. Under the doctrine of inherent powers this is a prerogative to be exercised by a simple majority. In the lower house of congress well established precedent holds that a member once admitted to a seat cannot be expelled unless for misconduct subsequent to his election or for offenses which did not become known until after his election. This is the power of self protection which would be normally appIied when a member is guilty of continued contempt or physical obstruction of proceedings. A person’s pre-election qualifications to a seat in congress must be questioned, if at all, before the member is sworn in, and on this question a simple majority has power to act. On the other hand, so distinguished a lawyer as Senator Knox argued forcefully before the senate in the Smoot case that a legislative body had no power at all to add to the constitutional qualification of members but that expulsion by two-thirds vote could occur for any cause which affects a member as such. The twothirds vote he compared to the unanimous decision required in jury trials, the purpose of both being to throw adequate protection about the accused. This was the theory followed by the senate in 1862 in the famous case of Benjamin Stark, senator-elect from Oregon, whose loyalty to the Union was in doubt. Stark, however, having been admitted to the senate, the motion to expel him failed. Throughout the Civil War and reconstruction period, the power of congress to exclude regularly elected members on grounds of disloyalty was debated at great length. Numerous representatives from the border states whose loyalty to the north was in doubt appeared for admission. In the Stark case, Senator Harris of New York reported for the judiciary committee as follows: do not understand that it is competent for the senate . . . to attempt to punish a man for crime or misbehavior antecedent to his election. If this were so the constitution ought to be amended so as to read that thelegislatureof astate . . . shall elect . . . a senator subject to the advice and consent of the senate. ” During this period the majority in congress believed more or less firmly that loyalty to the Union was a qualification for membership in addition to age, residence and citizenship as required by the constitution. The test oath act was passed in 1862 and subsequent action was based on it. However, it appears from the debates that the legality of extra-constitutional qualification was always in doubt and that this was one reason for the third section of the fourteenth amendment. One purpose was to keep out the southern Democrats, and congress did not feel that the doctrine of inherent powers was equal to the task. Furthermore, the cases of members excluded for disloyalty to the Union did not exceed half a dozen. The established doctrine was that unless it could be shown that the member had given aid to the rebellion by overt acts he could not be denied his seat. Of course, numerous members from southern

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296 NATIONAL MUNICIPAL REVIEW [May states who engaged in active warfare against the Union or committed open acts of hostility to the government were expelled. The senate refused, however, to expel Senator Powell of Kentucky, who had publicly urged neutrality for his state and had commended the governor for refusal to furnish troops to the north. Congress has claimed the right to exclude persons guilty of crime, notably the crimes of bribery and polygamy. The crime must be one, however, which affects a person’s capacity to act as a member. Members have also been expelled for bribery, the evidence of which came to light after the oath was administered, but it has been usual for the guilty person to resign and thus end proceedings against him. The recent Berger case involved criminal conviction for disloyalty. THE TWO MAIN CHARffES Disregarding certain trivial accusations in the brief against the five Socialists as irrelevant, the material charges in conformity with American precedent exemplified in congressional practice may be boiled down to two. Were the suspended members guilty of disloyalty to the United States or were they guilty of crime, namely of conspiring to overthrow the government by force? It would seem as if the criminal law is adequate to dispose of both charges and that a legislature should not undertake to punish a group or party which cannot be shown to be a criminal conspiracy. The Socialist party falls short of this. Failing to show that the accused are guilty of crime, personal disloyalty must be proved against them; it will not do to accuse a whole party of disloyalty if the members cannot be reached under the espionage law. True, congress during the Civil War held that disloyalty sufficient to disqualify for membership in that body might fall short of treason, yet it must be overt and open and have given aid and comfort to the enemy. And this power to exclude was only claimed at a time of armed rebellion in the midst of actual hostilities. As a mere matter of precedent the action of congress in 1862 cannot be stretched to cover the brief of the judiciary committee of the New York Assembly. That the leading members are not sure of their ground if the accused were tried in the courts is indicated by their repudiation throughout the hearings of the plan to bring criminal charges against them. ETHICS-OR LAW? It is the belief of the present writer that the mere legal irresponsibility of the legislature in matters of privilege in no sense destroys its high moral and political responsibility. Representative government is at bottom a question of ethics and as an institution must be shot through with the spirit of common counsel. This involves the recognition of small and at times personally offensive minorities. In their zeal to scourge heretics, legislatures must remember that democracy is a continual concession to heresy. The fact that the legislature in determining the qualification of members is not subject to judicial review does not mean that it is uncontrolled. In determining the rights of members and of constituencies it must adhere to the great and leading principles of judicial fairness; the spirit and intent of the constitution is binding on the legislature as on any department of goverqment. Especially must this be observed since the same body must usually act as both judge and jury. And a distinguished constitutional lawyer has noted that the abuses of power by Parliament in this connection

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19201 EXPULSION OF SOCIALIST ASSEMBLYMEN 297 marked the worst period of its dependence and corruption. The early precedents permitting an elected body to take issue with the honest will of the electors grew up before the representative nature of Parliament was established. Members of Parliament looked upon themselves as officers of government, as they yet possess legally the plenitude of sovereignty. Strict legal theory in England has never accepted the doctrine that power emanates from the people. There the privilege of electing representatives was a conceded and not an inherent right. The prerogatives of members, therefore, gave them rights against their constituents, as well as against the crown. A member persona non grata to the majority might be expelled, which was quite consistent with the close corporation conception of Parliament. Indeed on this ground some members of congress in 1867 favored the expulsion of certain others who, although their loyalty could not be impugned, had opposed the administration during the Civil War. But neither congress nor a state assembly is a club or debating society to pass on the eligibility of members. Burke condemned this tendency in the English Parliament: “If the habit prevails of going beyond the law and superseding the judicature, of carrying offenses real or supposed into legislative bodies who shall establish themselves into courts of criminal equity, all the evils of the Star Chamber are revived.” Criminal equity he describes as a monster in jurisprudence and consists in a liberal construction in determining offenses and a discretionary power in punishing them. “The true end and purpose of that House of Parliament which entertains such a jurisdiction will be destroyed by it.” As pointed out by counsel for the Socialists, under the wide jurisdiction claimed as a matter of right by the New York assembly, a strong and determined minority could take advantage of their momentary control of the house when some of the majority were at dinner or out playing poker and upon some fancied charge expel sufficient of the majority to place the minority in command. But more serious implications have been discovered by Father Ryan, a sturdy opponent of socialism. “I see quite clearly,” he writes, “that if the five Socialist representatives are expelled from the New York Assembly on the ground that they belong to and avow loyalty to an organization which the autocratic majority regards as ‘inimical to the best interests of the state of New York,’ a bigoted majority, in, say, the legislature of Georgia, may use the action as a precedent to keep out of that body regularly elected members who belong to the Catholic church. ” Religious intolerance survives, ad the Jesuit doctrine that the civil power is only the secular arm of the church or the syllabus ?f errors, issued by the Pope in 1864, forbidding anyone to argue that civil law ought to prevail in a contest between church and state, the publication of most of which was forbidden in France, might still provide the occasion for summoning the aid of the state in opposition to a minority religion. Even the senate committee which reported on Smoot’s right to his seat held that his membership in a religious hierarchy that united church and state contrary to the spirit of the constitution was a reason for vacating his seat. CONCLUSIONS Our beloved institutions of representative government will not stand tampering with. The alternative to-day is pure republican government or vio

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298 NATIONAL MUNICIPAL REVIEW [May lence. As shown above, best American precedent permits of no qualifications for membership in a representative body in addition to those stipulated by the constitution, except the tests of loyalty or freedom from crime. During the turbulent days of the Civil War, even this power was in doubt and congress refused to exclude regularly elected members unless their disloyal acts had been overt and open. Mere sympathy with the rebellion or want of active support of the government were not sufficient. In the words of a congressional committee of 1867: “We believe that in our government the right of representation is so sacred that no man who has been duly elected by the legal voters should be ref used a seat on grounds of personal disloyalty unless it has been proved that he has been guilty of such open acts of disloyalty t.hat he cannot honestly and truly take the oath.” If this is good American doctrine, what about the rights of representatives elected by a party which is but vaguely charged as disloyal? During the hearings before the judiciary committee, Assemblyman Evans, a Democratic member who had campaigned against the Socialists in their home districts, read into the record a dissenting statement which contains some good politics, “The duty and power to disqualify for elective oBce rests with the people and not with the Assembly. To maintain our form of government we must rely absolutely on the electorate-the majority of the electorate-to send to the assembly men who from our viewpoint are loyal and clean, and we must trust that the majority of the electorate will never fail in this respect. If in that respect the majority of the electorate ever fail, then our government must fail. There is no other alternative.” As our president, Mr. Charles E. Hughes, wrote Speaker Sweet, “Is it not clear that the government cannot be saved at the cost of its own principles? ”

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NOTES AND EVENTS I. GOVERNMENT AND ADMINISTRATION Proportional Representation in Canada and Ireland.--The cities of Vancouver and Victoria, British Columbia, have both voted to adopt the Hare system of proportional representation for the election of their councils. . Vancouver, which has a population of about 100,000, is now the largest city on the continent to use the proportional system. The movement for proportional representation is growing in several of the provinces of Canada. In Manitoba it is to be urged for the election of the members of the provincial parliament from Winnipeg. In Alberta Premier Stewart recently said: “You are asking for proportional representation. Before the next election you will have it.” In Saskatchewan the speech from the throne indicated that the government would soon introduce a bill providing proportional representation for urban municipal elections. On January 15 the Hare system of proportional representation was used for the first time generally for Irish local elections, no less than 187 Irish municipalities electing their councils or other “authorities” by the Hare system on that day. Befpre that time only one Iriih city, Sligo, had used the new system. It seems surprising that any election system whatever could give satisfaction to all parties in Ireland at the present time. Yet apparently the Hare system did just that, as is indicated by passages from newspapers representing the Unionist, the Sin Fein. and the Nationalist parties. The Hare system of proportional representation is prescribed in the new home rule bill for Ireland, the text of which was made public in England on February 28. The bill prescribes two parliaments, one for southern Ireland, the other for northern Ireland. Under the scheme of districting provided, the number of members elected proportionally from each district is from three to eight. After either parliament has been in existence for three years, it is to have power, according to the bill, to change the system if it desires to do so. 9 New York Adopts Housing Relief Measures. -Under the spur of public opinion and an 3 299 emergency message from Governor Smith, the New York legislature hw passed a series of eleven laws designed to relieve the housing situation in first-claw cities and Westchester county. These measures, which have been approved by the governor, are as follows: 1. Burden of proof that a tenant is objectionable when summary eviction is sought on that ground is shifted to the landlord. 8. Amendment of the so-called Ottinger law so as to provide that where an agreement between landlord and tenant does not specScally mention the duration of the tenancy this shall continue until October 1 following occupancy. 3. Thirty days’ notice instead of twenty by tenants intending to move is required where there is a monthly tenancy agreement. 4. In holdover cases, after there has been default in the payment of taxes or assessments, a tenant may remain, providing he deposits the amount of his rent with the judge or clerk of the court through which an eviction warrant has been served. 5. Where a precept is returnable the court may determine the amount of rent due and render judgment for that amount. 6. Where a landlord has increased his rent more than 25 per cent over what it was in the previous year the tenant may set up as a defense to action for payment of rent that it is “unreasonable, unconscionable. unjust and oppressive.” but the landlord may recover a “reasonable” amount of rent. 7. Section 230 of the real estate law, under which a landlord may recover double penalty from a tenant holding over without his consent, is repealed. 8. A tenant may make application for a stay up to nine months and the judge in his discretion grant it, provided the tenant deposits the amount of his rent and proves to the satisfaction of the court that he has diligently sought to secure suitable premises for himself and family and has failed through no fault of his own. 9. Practice is prescribed and the provisions of the code in summary proceedings harmonized with the new provisions embodied in the relief bills.

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300 NATIONAL MUNICIPAL REVIEW 10. The penal law is amended by making it a misdemeanor, punishable by a fine of $1,000 or one year’s imprisonment, or both, for a landlord to deny to a tenant the privilege of ‘‘ natural and normal service,” such as heat, water and operation of elevator. 11. The same defense is prescribed in actions for ejectment in the supreme court as has been prescribed for summary proceedings in the municipal courts in rent eviction cases. * Home-Rule Decision by Ohio Supreme Court. -In a mandamus suit brought against the commission of publicity and efficiency by the law director of Toledo, the supreme court of the state, in a unanimous opinion, decided that the state legislature has no control over the purpose for which bonds of a municipality may be issued, and that they may only limit the total amount of indebtedness a city may incur. The opinion resulted from a test suit to determine the city’s right to issue bonds against its general credit for the purchase of the street railway system. Whiie the full text of the decision has not yet been given out, a statement was issued by Chief Justice Nichols giving the gist of the decision. This statement was as follows: The primary question is whether a municipality, under the constitution and laws of the state, may incur debts through the issuance of bonds or otherwise for the purpose of acquiring a public utility. By the provisions of section 4 of article 18 of the constitution as amended in 191Q, authority is conferred upon any municipality of the state to acquire any public utility the product or service of which is to be supplied to the municipality or its inhabitants. The provisions of section 61 of article 18 authorizes any municipality which desires to raise money for such purpose to issue mortgage bonds therefor, and it may issue such bonds beyond the general limit of bonded indebtedness prescribed by law, provided such mortgage bonds issued beyond such general limit of bonded indebtedness shall not impose a liability upon the municipality, but shall be secured only upon the property and revenues of such public utdity. The legislature under authority of section 13 of article 18 may pass upon laws to limit the power of municipalities to levy taxes and secure debts. but it cannot thereby deny the right of a municipality to issue bonds for the proposed purpye, . that beg expressly authorized by consbtutional provlsions. Municipalities of the state are empowered by constitutional provisions to acquire any public utilit the product or service of which is to be rupph to the municipality or its inhabitants, and they may issue bonds to raise money for such purpose, pledging the general credit of the municipality to their payment within the limitations prescribed by the legislature as to amount of indebtedness for local purposes. No legislative grant of power is essential. The issuance of such bonds may be liited or restricted by legislative act, not as to the purpose, but only as to the amount of indebtedness the municipality may mcur. The decision of the court harmonizes with the intent of the framers of Ohio’s constitution in empowering municipalities to acquire, construct, or operate public utilities; but it goes even further than that, and holds that a city may issue general credit bonds for any purpose so long as the total indebtedness is kept within the limit prescribed by the legislature. * Constitutional Revision in New Hampshire.The recent New Hampshire convention to revise the constitution proved a very conservative body, adopting no measures of radical tendencies, and proposing altogether only seven amendments to the present constitution. These provide (1) authority for the legislature to impose a classified, graduated, and progressive income tax; (2) for removing the present constitutional limitation that no pension shall be granted for more than one year at a time; (3) for strengthening the progressive feature of the present inheritance tax, about which there has been some question; (4) for repealing the present coSstitutiona1 provision allowing conscientious objectors exemption from military duty; (5) for empowering the governor to veto individual items in appropriation bills, but subjecting such action to the same review of the legislature as in the case of other gubernatorial vetoes; (6) for eliminating the words ‘‘ rightly grounded on evangelical principles ” and “ Protestant ” from Article VI of the bill of rights providing for the encouragement of public worship of the deity and the right of electing religious teachers; and (7) for a reduction in the membership of the House of Representatives. The last is regarded generally as the important resolution of the whole seven. The House of Representatives at present has a minimum and a maximum membership of SO0 and 385 respectively. If this amendment is adopted the legislature in 1921 shall make a new apportionment, following the town system as at present, but based upon the average number of ballots cast for presidential electors at the two preceding

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19901 NOTES AND EVENTS 301 elections. The present representatives of the large towns and cities will be reduced by the provision that three times the number of electors shall be required to give a town or ward a second or third representative as was required for the first. The representation of the smaller towns will, however, be affected almost as much since more towns are to be placed in the classified list. Classified towns are those having less than 600 population, and each is represented in the legislature the proportionate part of time which its population bears to 600. The purpose underlying the proposal to base representation upon actual voters is to stimulate the cities to greater effort to naturaliie and Americanize the foreign population. rl? Omaha Acquires Municipal Gas Plant.Omaha, Nebraska, with a population of about 200,000. is the largest municipality in the United States to try municipal ownership of the gas plant. The question has been under consideration since November, 1907, when a special election was called to submit to the public the question of voting bonds in the amount of $3,500,000. It was defeated, but again in May, 1918, the proposition of acquiring the gas plant by the exercise of eminent domain through a condemnation court was carried. The city of Omaha and the company had appraisals made which were submitted to the condemnation court. In four separate appraisals the values placed upon the property were $3,760,000, $6,!281.000, $5,518,000, and $5,570,000. The &st of these was made by the city’s appraisers; the other three by appraisers representing the company. These figures represent the depreciated values of the property and include going value. Early in February, 19%0, the condemnation court rendered a decision awarding the gas company $4,500,000 as the value of the property, and on March %O, the city commissioners voted to take over the gas works and its operation at this price. The city commissioners also voted $1,000,000 as working capital for improvements and extensions. The gas plant will be operated by the municipality under a bi-partisan board of directors with a manager in charge of the property. The same board that now operates the municipal water plant will operate the gas plant, It is anticipated that under the city management the rates will not be increased as has been recently the case with many privately owned and operated gas plants. This step in municipal ownership is significant in the light of the fact that Omaha already owns and operates its water plant and ice plant. rl? Proposed Remedies for the Dearth of Jurors. -The committee on courts of the City Club of New York has made a study of the difficulty of obtaining well-qualied jurors in New York countydifficulty experienced in many places -and has prepared a series of remedial bills which have been approved by the trustees of the club and introduced in the legislature. These measures may be briefly summarized thus: (1) Abolishing jury duty exemptions of special jurors. (2) Abolishing exemptions from duty of eleo tion officers. (3) Abolishing the exemptions from jury duty of clergymen, veterinary surgeons, sherirs jurors, and volunteer firemen, and reducing the exemptions of members of the National Guard to five years after honorable discharge. (4) Reducing the period of yearly residence required in New York county to qualiiy as jurors. 4, Kansas City Considers “Detroit Plan” of “Ribbon” Wards.-With the avowed purpose of destroying boss domination in Kansas City, Missouri, former Mayor Henry M. Beardsley has proposed the adoption of the “Detroit plan” of ribbon wards, under which the city would be divided into a number of wards (sixteen, as at present) running with substantially parallel lines from the north to the south boundary lines, and containing as nearly as may be the same voting population in each ward. It is not presumed that a mere change of ward boundaries will correct political evils; but changes can be made that will be exceedingly helpful toward that end. The proposed plan, it is claimed, is of such a kind, because it would break up the wards in which the political machine has been able most securely to develop an organization for controlling elections through fraudulent registration and irregular conduct in receiving and counting the ballots. Under existing law, residents of any ward may serve as election officers in another precinct in the

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302 NATIONAL MUNICIPAL REVIEW same ward, so that by cutting the wards in long strips, each to include a part of the better residential district as well as a part of the business section, a better choice of election o5cers would be possible for all the precincts of every ward. This plan is to be submitted to every civic organization in the city for its approval, and finally submitted to candidates for council for their approval or rejection. It has received the endorsement of the Citizen’s League. 11. JUDICIAL DECISIONS Gas Rates.-In the case of the Southwestern Gas and Electric Company v. City of Shreveportl the Circuit Court of Appeals held that the city was not estopped from maintaining a suit to enjoin the charging of increased rates by the gas company, even though it took no action upon learning of the intended increase, but waited until the increased rates had been put into effect. The court held also that where a company held two franchises, one acquired by assignment, it is bound to charge no more than the lowest maximum rate provided in either franchise. Another interesting gas rate case is that of Se1kil.k v. Sioux City Gas & Electric Company,a wherein the supreme court of Iowa decided that under a state law, empowering a city to regulate gas rates, Sioux City had a right to pass an ordinance fixing such rates and repealing all ordinances fixing gas rates previously passed, notwithstanding an ordinance in force at the time fixed such rates and provided that upon acceptance thereof by the gas company it should become a binding contract between the city and the gas company. * Removal of a Public 0flBcer.-In an action against a city for salary by its marshall, removed from office by the mayor, the evidence of the marshall as to his conversation with the mayor tended to show that he was removed for political reasons, and not for incompetency, as stated by the charges filed by the mayor in accordance with the charter. The supreme court of Texas, City of Antonio v. Newnam? held this was sufficient to sustain a verdict for the marshall. The mayor said “I fired you to put in my own people who helped me to be elected.” * Newsstands as Nuisances-Although the Buffalo city commission had authorized streetcorner newsstands by law, the supreme court of Erie county granted a writ of mandamus against 1261 Fed. 771. 176 N. W. 301. the commission and street commissioner to remove these newsstands on the ground that they were nuisances as a matter of law, being permanent, unreasonable, and unnecessary encroachments upon the public street. This suit was brought by a taxpayer, and it is doubtless the only way by which such street obstructions can be eliminated. * Wheeling Charter.-The supreme court of appeals of West Virginia has recently upheld the validity of the greater Wheeling charter, and declared that the resolution of the city council, and the notice given by it of the election to take in a number of suburban towns as parts of the city, was sufficient to make legal the voting of the people on the proposition, both in the city proper and in the city suburbs. rl? Toledo Car Lines.-Advocates of municipal ownership of public utilities claim to have won a great victory, when the Ohio supreme court. recently held that a city may incur debt through the issuance of bonds or otherwise for the purpose of acquiring street railway systems within the city. Chief Justice Nichols gave the following as the court’s line of reasoning: “Municipalities of the state are empowered by constitutional provisions to acquire any public utility, the product or service of which is to be supplied to the municipality or its inhabitants, and they may issue bonds to raise money for such purpose, pledging the general credit of the municipality to their payment within the limits prescribed by the legislature as to the amount of indebtedness for local purposes. No legislative grant of power is essential. The issuance of such bonds may be limited or restricted by legislative act, not as to the purpose, but only as to the amount of indebtedness the municipality may incur.’’ * Street Improvements.-The validity of a number of ordinances for the improvement of Columbus streets was tested recently in the ~. 218 9. W. 128. Franklin County courts. The improvements

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19201 NOTES AND EVENTS 303 were made without petition of property owners, and the ordinances were passed by a vote of less than threefourths of the city council. The main point involved in the case was whether a city charter, or the general state law with reference to taxation, controls the city council in the improvement of public streets. The court held that notwithstanding the home-rule section of the state constitution, the general state laws upon taxation predominate, and that no city can escape these laws by adopting a charter of different provisions. In this case the council adopted the improving ordinance by a vote of five of its seven members. The state law requires that at least threefourths of the council shall vote for such a measure before it can be adopted. In view of this fact the court held against the ordinance. * Zoning.-The supreme court of Minnesota in the case of ruin City Building & Investment Company v. Houghn recently decided that apartment houses may be barred from residential districts created by cities of the first class in this state under eminent domain. Justice Rolt said: “It is time that courts recognized the esthetic as a factor in life. Beauty and fitness enhance values in public and private structures. But it is not sufficient that the building is fit and proper, standing alone; it should also fit in with surrounding structures to some degree. People are beginning to realize this more than before, and are calling for city planning by which the individual homes may be segregated not only from industrial and mercantile districts, but also from the districts devoted to hotels and apartments. The act in question responds to this call, and should be deemed to provide for a taking for a public purpose.” ROBERT E. TRACY. 111. MISCELLANEOUS Municipal Savings Bank Saves Money for City.-The “municipal savings bank” of Saint Paul (Minnesota), according to a recent statement had deposits totaling $3,635,000 on July 1, 1919, after six years of operation. The “bank” is operated by one clerk. It accepts deposits and issues 4 per cent certificates redeemable on demand and with interest, whether the money has been on deposit a day or a year. For the investment of its deposits the “bank” buys tax certificates and bonds of the city, particularly at times when the city would have to pay high rates for loans through commercial channels. Within the past twelve months the “city bank” has taken $100,000 of 4+ per cent 10-year water bonds, $600,000 of 4f per cent school bonds, and $750,000 of 5 per cent tax levy certificates, which, it is stated, were not commercially marketable at those rates. It is reported that the water-bond transaction alone will save the city $105,000 of interest charges. * Municipal Banks in England.-In the early part of 1916 the corporation of Birmingham, England, at the instigation of the lord mayor, promoted a bill in parliament to establish a municipal savings bank. The measure met with considerable opposition from the banking world, and eventually the proposal had to be abandoned. This was not to the liking of Birmingham, and six months later it succeeded in persuading the government to bring in a measure which became law, and was known as the municipal savings banks (war loan investment) act, 1916. This measure was very unsatisfactory, being full of limitations and restrictions. According to a statement made by the manager of the bank, its privileges were restricted to one class of depositor, namely, employed persons; the savings could only be made through the employer; no savings beyond E200 were permitted; the bank could only run for three months after the war; the money had to be invested through the national debt commissioners; and no sum could be withdrawn over El without seven days’ notice. Conditions such as these are almost enough to break the heart of any public authority or person interested in thrift. Despite all these drawbacks the scheme was worked in Birmingham with such success that 35,000 depositors were enrolled, and in three years 2350,000 were collected-an achievement the corporation is proud of. With the signing of the armistice the question arose as to whether all this money should be paid out to depositors, or whether steps should be taken to build up a permanent bank. Eventually the corporation decided to promote a bill for the setting up of a permanent bank with wider powers. Parliamentary assent was given on August 16, 1919, and on September 1, 1919, this bank

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504 NATIONAL MUNICIPAL REVIEW opened its doors to the public, with a head office at the council house and seventeen branches in different parts of the city, some open daily and others on certain evenings. Eight thousand new depositors were enrolled during the 6rst ninety days, and the rate of progress is being maintained. There are two distinct departments in the bank, a savings bank department and a house purchase department. The former is conducted on lines very similar to trustee savings banks and the Yorkshire penny bank. Any sum from Id. upwards is accepted. Withdrawals up to 230 can be effected at the head office without notice, and at any branch up to 25. The house purchase department follows very closely the procedure of a building society. The advances are limited to depositors, to houses actually built, and to houses within the city. The extent of the advance which can be made is 80 per cent of the market value, and the repayments may be spread over a period of twenty years. In the first three months, upwards of 200 applications were received. The Birmingham municipal bank is governed by a committee of the council, upon which labor is prominently represented. Its success has led to agitation in Manchester, Bradford, and other cities for the establishment of similar institutions. 9 One-Man Street Cars Barred in Nashville.Opposition of labor unions in Nashville, Tennessee, to the operation of one-man street cars induced the city commission to prohibit the use of such cars by the Nashville railway and light company. The measure was passed by a vote of three to two. Greater economy in operation was the claim made for the one-man system by the company, which predicted that continuance of the two-man cars would force it into bankruptcy. A number of citizens appeared before the commission in favor of the one-man cars, and testified that service was improved by the new cars. Representatives of the labor unions contended that use of the cars was unfair to the employes. * National Information Bureau Investigates Organizations Appealing for Funds.-The national information bureau, organized by charitable contributors and leaders in philanthropic work to investigate all national appeals and indorse those which meet certain standards of responsibility and efficiency, has issued an approved list of 123 national philanthropic and civic agencies appealing for a total of $160,000,000. Adding $176,463,473 for religious organizations which have complied with the standards of the bureau, and $100,000,000 asked for by 34 colleges and universities, makes it apparent that hardly less than $450,000,000 will be needed to pay the total bill for charity, social betterment, and educational purposes in 1920, without taking into account local charities, local church expenses, and taxation for public institutions. The bureau was compelled to refuse indorsement in more than half its investigations.

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CITY MANAGER MOVEMENT PROGRESS OF MANAGER PLAN IN ONE HUNDRED EIGHTY-FIVE CITIES BY HARRISON GRAY OTIS' MORE than 3,100,000 American citizens are living to-day in towns and cities that have adopted the citymanager plan of government. Until six years ago there were but a dozen small towns in the whole country that had ventured into the limelight by authorizing their councils to appoint the chief administrative otEcer instead of trusting the ballot box to produce executive efficiency, To-day there are 180 municipalities in the United States operating under, or pledged to, some type of the manager plan. Of these, 114 have created the position of manager by charter, charter amendment or adoption of optional state laws by popular referendum. Nine more have secured modified manager plans by similar means, while the remaining 57 have officers called managers whose positions and duties are established by local ordinance only. Fifty of these latter are towns of less than 10,000 population. The record of the growth of the manager plan by years and types follows: YEAR IN EFFEC~ 1908.. . . . 1912.. . , , 1913.. . . . 1914.. . . . 1915.. . , . 1916.. . . . 1917.. . . . 1918.. . . . 1919.. . . . 1920 (4 mo Totah. . APPROVEL CHARTER 5 12 12 14 12 20 20 19 114 MODIFIED CHARTER ~ ORDIONLY NANCBI 1 2 4 5 6 5 3 11 10 10 57 TOTAL 1 2 9 20 21 20 16 32 30 29 180 Secretary, City Managers' Association. Incidentally, it is worth noting that 26 other towns have tried and discontinued the ordinance-created manager plan. To date, no report is at hand of any city having reverted to its former plan of government after having adopted the manager idea by vote of its citizens. Five Canadian towns employ managers. Classified as to size, the population figures being estimates : IIIII I 20,000 10,000 5,000 umw 50p000 50,000 20,000 10,000 5p000 PLAN 1 1 TO 1 TO 1 TO 1 /TOTAL ACHIEVEMENT REPORTS For the past three years the city managers' association has made an effort to secure definite, concise reports as to how the manager pIan is working out in the various cities, what achievements are to its credit, in what way it has permitted improved conditions, how the average citizen looks upon the innovation. We here present the first of a series of articles which will comprise a report upon the success of the plan. These stories have been gleaned from letters from managers, mayors, chamber of commerce secretaries and business men, from annual city reports, from the press and from interviews. The subject of the first installment is 305

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306 NATIONAL MUNICIPAL REVIEW [May Dixie-Birthplace of the City-Manager Plan. The subjects of subsequent chapters will be City Managers in and around Ohio. Michigan Manager Municipalities. Texas and Oklahoma Turn to Manager Plan. I. DIXIE, BIRTHPLACE OF The South has been given first place in discussing the progress of the citymanager movement for several reasons : To Dixie belongs the distinction of appointing the first city manager, of putting into effect the first three commission-manager charters, of having both the largest and smallest cities now operating under this plan. It boasts the state which is credited with having the largest percentage of its population pledged to the plan. Among Dixie managers are the first man to enter the new profession and the one who holds the record of longest continued service in a single city. It was a southern city of 12,000 which adopted its commission-manager charter by a record ratio of 54 to 1, and a neighboring town of 11,000 claims the limelight by having had 522 applicants for the position of city manager. VIRGINIA Virginia leads the South. It inaugurated the manager idea by the appointment of Charles E. Ashburner as general manager of Staunton in January, 1908. Mr. Ashburner is now manager at Norfolk, a city whose population is close to 200,000. At this time, Virginia has 17 towns and cities pledged to the manager plan. Of these 9 have created the position of manager by adoption of the optional law of 1914 or by special charter. The other 8 have passed ordinances creating the oEce of manaPa&& Coast Cities under Manager Borough, Town and City Managers Reports from Managers in the Prairie Progress of Manager Movement in Government. “Down East.” States. Rocky Mountain Region. THE CITY MANAGER IDEA ger. One fdth of Virginia’s entire population live in city-manager cities. The cities of Petersburg, Newport News, Lynchburg, and Hampton have voted for the new plan and managers will be appointed during this year. Progress Supercedes Politics at Norfolk NORFOLK. Population, 200,000. Commission-manager charter effective September, 1918. Charles E. Ashburner, manager, salary, $12,000, Few cities have faced more serious problems of readjustment than has Norfolk. The population has more than doubled and all branches of municipal activities have been taxed to the utmost, yet the record to the credit of the new plan is an enviable one. Among the high spots are: A deficit reduction of $?200,000; $1,500,000 added public improvements; best paid fire and police departments in the United States, and fire department on two-platoon system; juvenile court established, fourteen playgrounds provided, and teachers’ salaries increased. Surveys have been completed for a $3,000,000 addition to the water works system. The paving of 43 streets has been authorized and many of the contracts completed. Through co-operation between the city planning commission and the citizens, a street extension project which would ordinarily have cost the city $250,000 has been completed at an expense of $%O,OOO. By plans

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19201 CITY MANAGER MOVEMENT 307 now under way the city will acquire approximately 50 acres of land fronting on deep water valued at $750,000. The cost of this improvement will not exceed $250,000 leaving a net gain of $500,000 and requiring only the construction of a pier to make the whole property available for shipping purposes. Vying with the material gains noted have been the advances in public welfare and recreation fields. All branches of the welfare department have been unified, a city hospital established, visiting nurses employed, free medical and dental clinics opened and a striking reduction in infant mortality brought about. With the increased playground facilities, the attendance has quadrupled and the benefits enjoyed by grown-ups as well as children. A municipal tennis tournament proved most successful. A Norfolk editorial sums up the situation: “Having outgrown her old unsteady form of government, Norfolk discarded it and evolved a better one. At last it seems that in one American city at least the playing of politics in municipal government has been abandoned.” Portsmouth Saves $44,000 First Year PORTSMOUTH. Population, 80,000. Commission-manager charter effective January, 1917. W. B. Bates appointed manager August, 1917; present salary, $5,000. During the first year, under the new plan, the city saved $44,000 notwithstanding war conditions. During the second year, with expenses enormously increased, the city about broke even. Annexation of territory increased the population by 15,000 and added property values to the amount of $6,000,000. The high points of achievement are reported as follows: The city has purchased for $2,700,000 a $3,000,000 water system which supplies three cities, and has contracted for extensions and enlargements amounting to $1,800,000; established a $10,000 asphalt plant; equipped the street cleaning, trash and garbage department at cost of $20,000. By terms of a lease to the government of the ferry owned by the city and county, the equipment has been doubled and the ultimate income will be greatly increased. A much needed city cemetery has been provided by the purchase of a 113-acre plot. A complete building code has been enacted and a building inspector appointed to enforce it. Plans to purchase the gas system are being considered. A memorial community house may be ’ erected and the establishment of a civic center to cost approximately $500,000 has been recommended. Old System Inadequate ROANOKE. Population, 47,350. Commission-manager charter effective September, 1918. William P. Hunter, manager; salary, $4,800. A letter from the secretary of the Roanoke chamber of commerce contains the following significant paragraph: “We feel that Roanoke is particularly fortunate in that this change was made in 1918, and that our affairs have for the last year been in the hands of five successful, earnest business men. In addition to the tremendous increase in the cost of operation which the city has had to face along with all other business enterprises, there has been the loss of revenue because of prohibition and certain taxes upon railroad rolling stock that have been diverted. In spite of all this, the city has progressed and has kept within its financial limits. “ Considerable public work has been done, new territory has been annexed and a comprehensive business-like budget for the coming year has been

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308 NATIONAL MUNICIPAL REVIEW [May adopted. The council of five meets each Saturday afternoon at 3 o’clock in public session and any citizen can get respectful hearing and an immediate answer. It is true that time honored political traditions have been violated in the change here, but it is our opinion that our people generally recognize the wisdom of their action. “We have been careful always and wish to have it understood in this communication, that there has been no criticism intended of the men composing the old form of government in Roanoke. There has been no suspicion of misappropriation of funds or anything of that sort, the whole matter hinging purely upon the inability of the old system to care for the needs of a community such as this.” A Program of Improvements CHARLOTTESVILLE. Population, 10,688. Position provided for by ordinances of August, 1913, and January, 1917. Shelton S. Fife, the third manager, was appointed September, 1918; salary, $2,400. The manager plan has been hampered at Charlottesville by a lack of a proper charter yet concentrating department control in a single office has promoted increased service. During the past year the water, gas and sewer mains have been considerably extended, a concrete mixing plant has been purchased and the city is constructing concrete pavements as rapidly as possible. Detailed plans for a comprehensive program of improvements have been worked out and a million dollar bond issue will be submitted to the voters in April. The proposed improvements include paving, water, gas and sewer extensions, constfiction of a municipal memorial building and purTwelve Years of Success at Staunton STAUNTON. Population, 13,000. Staunton originated the idea of employing a city administrator by putting into effect an ordinance creating the position of general manager, January, 1908. The first manager, Charles E. Ashburner, was succeeded January, 1911, by S. D. Holsinger. Mr. Holsinger’s salary is $2,000. By the merging of offices and making of advantageous contracts, the saving has more than doubled the amount of salary and expenses of the manager’s office. Staunton has found the manager plan so good an investment that there is a strong sentiment at present to improve it by adopting a standard commission-manager charter. Among the advance steps taken may be noted: Modern accounting methods and budget system; Centralized purchasing; Improved procedure of levying and collecting assessments for sewer and paving work; Metering of water supply; Preparation of sewer, water, and light maps; More efficient street paving methods ; Increased sanitation and systematic garbage removal; Complete motorization of fire department; Increased beautification and use of public park; Erection of modern street signs; Systematic renumbering of buildings and removal of wooden business signs and stationary awnings. From local reports, it is evident that “the manager idea is permanently established and its success universally conceded.” Amendment Precedes New Charier BRISTOL. Population, 8,500. Citymanager ~lan Drovided bs charter chase if motor fire apparatus. v

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19201 CITY MANAGER MOVEMENT 309 amendment effective September, 1919. R. W. Rigsby, manager; salary, $3,000. Accomplishments under the new plan during the brief period of its operation have been hampered by meager appropriations made by the outgoing council. Perhaps the greatest achievement of the new administration has been the drafting of a complete modern charter to replace the patched-up machinery now in use. This charter will be submitted to the voters soon. A detded city map has been completed as a preliminary to a comprehensive city plan. This has been a big undertaking as the city departments have been practicdy destitute of accurate records. Plans are now in progress for complete sewer and water development A modern accounting department has been installed and purchasing centralized, The progress being made is meeting with strong popular approval. A Million Dollar Sewage Disposal Plant WINCHESTER. ‘Population, 6,883. Position of manager created by ordinance May, 1916. Thomas J. Trier, the second manager, succeeded A. M. Field, September, 1918; salary, $2,000. A recent letter from Winchester advises that the manager form of government is very satisfactory to the public and that there has been a movement on foot to adopt a standard commission-manager charter. During the past year the city has opened up a stone quarry, which will mean a saving of hundreds of dollars annually. A million dollar sewage disposal plant is nearing completion. The projects now being worked out include the extension of the city limits, survey for a soft water supply, installation of municipal light plant in combination with present water plant and a general extension of sewer and street work. Another Good Year at Farmville FARMYILLE. Population, 4,000. Position of superintendent created by ordinance September, 1915. Leslie Fogus, the second superintendent, was appointed September, 1917; salary, $1,400. The year 1919 has increased the popularity of the manager plan in Farmville because of the many improvements made possible. During the year the city has constructed 5,000 square yards of concrete paving and three concrete bridges besides building three-fourths of a mile of macadam roadway. Water mains have been extended 3,000 feet, sewer lines 500 feet and electric service furnished to Hampden College, a distance of eight miles. Other Virginia Cities SUFFOLK. Population, 8,000. Adopted the city-manager plan by charter September, 1919. Richard H. Brinkley, former city engineer at SufTolk, was appointed manager in October; salary, $3,000. WARRENTON. Population, 3,000. Has created the position of manager by ordinance and appointed L. M. Clarkson, March, 1920; salary, $1,800. BLACKSTONE. Population, 2,000. Provided for the position of general manager by a charter amendment which became effective June 1, 1914. R. B. Stone serves as treasurer, clerk, and general manager; salary, $1,500. NETWORT NEWS, population, 37,500; LYNCHBURG, population, 35,000; PETERSBURG, population 25,000 ; HAMTTON, population 8,000 have all adopted commission-manager charters which go into effect during 1920.

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TECHNICAL SUPPLEMENTS OF THE National a1 Review 1. The Assessment of Real Estate By LAWSON PURDY, for eleven years President, Dept. of Taxes and Assessments, City of New York; in co-operation with the National Municipal League’s Committee on New Sources of Revenue, Robert Murray Haig, Chairman. Describes the type of organization and principles of administration best adapted to the task of assessing real estate in American municipalities-the mature conclusions of a notable tax administrator. 24 pages. 2. Administrative Consolidation in State Governments By A. E. BUCK, Describes exhaustively the consolidations of state offices, boards, and bureaus in Illinois, Idaho, Nebraska, and Massachusetts, and the proposed consolidations in New York and Delaware, and supplies helpful references to the various official reports of eleven states. The only comparative study available on this subject. 32 pages, with diagrams. New York Bureau of Municipal Research. 3. The Coming of Centralized Purchasing in State Governments By A. E. BUCK, A comparative suxvey of the purchasing agencies, methods, and procedure in the twelve states where centralization has been instituted. A distinct contribution to the movement to increase efficiency in state purchasing. 24 pages. New York Bureau of Municipal Research. Prices of any of these supplements: Single copies, 25 cents 5 copies, $1.00 25 copies, $4.00 100 copies, $15 NATIQNAL MWNICIBAL LEAGUE NORTH AMERICAN BUILDING PHILADELPHIA, PA.

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SUPPLEMENT TO THE National Vol. IX, No. 5 May, 1920 Total No. 47 ZONING BY EDWARD M. BASSETT of the New York Bar Counsel of Zoning Committee of the City of New York Former Chairman of Districting Commission of the City of New York PUBLISHED BY THE NATIONAL MUNICIPAL LEAGUE MILROAD SQUARE, CONCORD, N. H. EDITORIAL OFFICE, NORTH AMERICAN BUILDING PHILADELPHIA. PA. ~Entered as second-class matter April IS, 1914, at the post office at Concord, New Hampshire, under the Act of August 14, lgIz

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CONTENTS PAGE I . Chaotic conditions in unzoned cities ............................ I1 . Protective efforts before the spread of zoning ................... I11 . What is zoning and how does it protect ........................ IV . How to obtain a zoning plan for a city ......................... V . Where to get information ..................................... VI . Statement of principles of zoning formulated by the author ..... VII . Suggestions for forms of legislative enactments ................... VIII . Opinions of the Courts ....................................... IX . Statutes and ordinances ...................................... X . Bibliography by Miss Theodora Kimball ........................ 515 317 518 327 331 3311 334 356 537 338

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1. CHAOTIC CONDITIONS IN UNZONED CITIES Five years ago in every large city of our ,country a landowner could put up a building to any height, in any place, of any size, and use it to any purpose, regardless of how much it hurt his neighbors. A few cities had passed ordinances limiting the height of skyscrapers, but these limits were subject to easy change and not part of a comprehensive plan. A few cities limited the height of apartment houses and did not allow them to cover the entire lot. In many cities regulations looking toward zoning were practiced or attempted, but they were usually for chosen sections or to meet local emergencies. Building laws, apart from those applying to fire limits, treated all parts of the city alike whether inside or suburban, whether business centers or residential outskirts. By and large the upbuilding of a city was left to the whim or personal profit of the individual builder and he could do what he wanted to with his own land, even if it hurt the city or the neighborhood. Skyscrapers would be built to unnecessary height, their cornices projecting into the street and shutting out light and air. The lower floors needed artificial light in the daytime. Business centers instead of being rationally spread out were intensively congested. Transit and street facilities were overwhelmed. In some of the larger cities a landowner in the business district was almost compelled to put up a skyscraper because if he put up a low building, his next neighbor would put up a higher one that would take advantage of his light and air. The first skyscraper that went up in a ZONING 316 block would enjoy high rents because of its outlook, but when other buildings went up equally high, its rents would fall. The skyscraper would usually be built to cover the entire lot, with its windows opening on other people’s land. Some eligible lots were hedged in by skyscrapers so that no profitable buildings could be erected upon them and their rightful value was stolen by their skyscraper neighbors. The individual landowner could not be blamed because if he did not take advantage of his neighbor, his neighbor would take advantage of him. Many owners recognized that skyscrapers were less desirable and often less profitable than lower buildings, that the gk ing up of valuable space to gangs of elevators for different stories lessened the rentable area and that the cost of construction per cubic foot of a skyscraper was vastly greater than of a building of moderate height. Nevertheless the owner, realizing that a fairly low building in the intensive district would be pocketed by skyscrapers, would build a skyscraper himself. If he left any of his lot uncovered, or set back the upper part of his building, his neighbor would take entire advantage of it instead of leaving corresponding openings. The result was that the lack of regulation stimulated each owner to build in the most hurtful manner. In residential localities high apartments would build out to the street line and their windows would open on the grounds of private residences. A vacant unrestricted lot in a high-class residential district had a high exploitation value. After such a locality was exploited by a dozen apartment houses, the owners of the private residences would begin to move away

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NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May The locality would become depressed and the apartment houses themselves would sometimes find themselves in a blighted district. Bright business streets would be invaded by factories. When the factory use began to predominate, customers would leave the localities, rents of stores would drop, and some of the most eligible business centers of cities became partly deserted. Fortunes were lost because business would move away from the locality where it would naturally remain if not forced out. Public stables and more latterly public garages would enter the best business and residential districts. A garage costing $25,000 might cause a loss of $100,000 in the surrounding values. Garages did not seek the industrial localities but would crowd into the business and residential districts that they would hurt the most. Although it was evident that a growing city would more and more need its vacant suburbs for residential purposes, sporadic factories were free to enter these open places. Sometimesnuisance factories would go out half a mile from the city in an open area in order that they might be free from complaints of smoke and fumes. When the city built out toward the factory, the residences would keep at a distance. The factory might occupy an acre and almost ruin a hundred acres. Pressure of taxes and interest charges on the owners of this blighted district would cause them to sell at last for cheap and poorly-built houses without the introduction of proper street improvements. Although traffic and carline streets were normally attractive to retail stores in residential districts, it was frequently the case that a grocer, butcher or druggist would find an eligible corner lot in the heart of a residential district and build a store occupying the entire plot. Sometimes he would alter an existing house, projecting the plate glass front to the street line. This cut off the frontages of the houses in the block that had been built with a uniform setback. If the first comer was successful in his business, others were attracted, and soon the residential section was shot through with the unnecessary business buildings. This hurt the carlime street where the business ought to be, and it hurt the residential district where the business ought not to be. In the great cities especially this freedom of invasion of hurtful uses drove well-to-do families out of the city, where in suburban villages they could to a greater extent obtain protected surroundings. Citizens whose financial ability and public enterprise made them most helpful within the city limits were the very ones that would often be tempted to remove their families outside of the city. Thousands of the best business men would earn their livelihood in the big city, but would give their money and energy to the creating of healthful living conditions in a suburban town. This helped to create a city of factories and tenement houses instead of a city of homes with needed open places. A man who built a $40,000 home in most of our large cities was considered highly speculative because in a few years he might have an apartment house on one side and a factory on the other. No kind of building was immune from harm. Business districts were invaded by factories, apartment house districts by sweat shops, junk shops and garages, private house districts by apartment houses, and vacant suburban areas by the sporadic chemical or metal factory. There was a ‘succession of invasive uses for which the buildings already erected were not adapted. Sometimes a blighted district ensued. In any case buildings

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19901 ZONING 317 could not be used for their normal life for the uses for which they were designed. Waste on a large scale was inevitable. Sometimes buildings that had a normal life of eighty years were torn down within ifteen years and replaced by a different kind. Not only were private owners injured but the city itself became less attractive to industrial enterprises, business men and home owners. Chaotic conditions caused workers to travel daily too far from home. The cost of rapid transit lines over and under ground was increased. Street widths and sizes of blocks could not be predetermined. Expensive street improvements, consisting entirely of alterations, became successively necessary. For these reasons the city was not as economically sound as it would be if through community action it could have kept its house in order. 11. PROTECTIVE EFFORTS BEFORE THE BPREAD OF ZONING But one will say, “Could not all of these injurious effects have been prevented by private restrictions in deeds?” The history of private restrictiong has been far from satisfactory. They have operated fairly well in residential developments but have almost never been resorted to for the regulation of skyscrapers, to prevent the invasion of industry in business localities or to stabilize large land areas, different parts of which can properly be put to different uses, When localities are built up without contractual restrictions it is always too late to impose them because private owners can never agree after their buildings are once erected. Efforts are frequently made but a small minority can usually upset the best laid plan. Even in private residential developments the beneficial efTect of private restrictions is apt to be short-lived. Usually these restrictions are for a period of twenty or twenty-five years. In that time three-fourths of the lots are built upon with a uniform class of residences. As the time expires, owners begin to keep their lots, especially vacant corner lots, out of improvement so that on the lapse of the restrictions they may erect apartment houses and thus exploit the private home surroundings. Sometimes during this period home .owners will allow their houses to run down so that they will be almost valueless when the restrictions expire, and they can then use their land without great loss for apartment houses or business places. Home owners in such localities must be alert to go to court at the slightest violation of the restrictions, otherwise the courts will hold that the restrictions have become inoperative through laches. Often the restrictionsare badly drawn and show lack of foresight. Then litigations are sure to ensue. In any case such restrictions have little effect on the upbuilding of a city that is to continue a center of population for centuries. If the restrictions are perpetual, they are still more troublesome. After the lapse of a long time they are difficult to alter because some owners deriving their title from a common source will not sign releases. The courts are prone to say that the restrictions have expired by lapsing on account of a change in the character of the neighborhood. Perpetual restrictions have proven more harmful than those for a fked period. Contractual restrictions have been of great service in all cities and they will continue to be. They cannot, however, be looked upon as affording sufficient or long-time protection from an all-city point of view. They are incapable of adaptation to the changing needs of the city. They sometimes stand in the way of normal and natural improvements.

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318 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May Some cities have given large powers to official boards or department heads to prohibit offensive uses of buildings or to cause them to be placed in suitable localities. At the best this is a substitution of the rule of man for the rule of law and is apt to result in playing favorites. The method is not legally sound except as to uses of a nuisance character, and many cities are sure to be disappointed before long in finding that the courts will not uphold an enlargement of the unregulated freedom of officials in prohibiting certain buildings in one place and allowing them in another. A landowner who offers his plan to a building department for a building not objectionable as L nuisance can in such a city practically always obtain a mandamus order against the building superintendent commanding him to file the plan and issue the permit. Sometimes cities seek to apply specific regulations to parts of their area, leaving other areas without such regulation. This is equally apt to meet the disapproval of the courts, for all property situated substantially similarly should be treated alike. Public garages afford a good example of the kind of building left to officials to locate on application. While a public garage partakes of a nuisance character and is generally recognized as coming within such control, nevertheless it almost always happens that there is a tendency to employ influence in the obtaining of permits. Garages are a public necessity. Every city should have numerous spots where public garages can be bvilt without the permit being a matter of favor. It is well settled that nuisances can be segregated. Slaughter houses can be compelled to go into assigned localities. The trouble is that the power to segregate slaughter houses, and the very limited power of public officials to locate garages and other quasi-nuisances has very little effect in bringing about the orderly upbuilding of the entire city. And even this field which might be left to the discretion of officials is apt to become a matter of favor or punishment. Uniform building laws do not bring about the orderly condition desired. They apply in all parts of the city. They do not recognize that heights of buildings which may be permitted in the intensively used parts of the city should not prevail in the suburbs. They do not recognize that stores which may be built on carline streets should not be built promiscuously among homes. They do not recognize that a lot can be more appropriately built upon to the extent of 90 per cent in the business districts than in the suburbs. In other words they apply uniformly over the entire city. The usefulness of zoning regulations consists in their being different for different districts. Regulations commonly classed as fire limits are a simple form of zoning which has been employed for a long time by many cities. N. WHAT IS ZONING AND HOW DOES IT PROTECT? A zone is a belt. Medieval walled towns in Europe were somewhat circular in form. When they outgrew their walls, especially in the case of large cities, the location of the walls would be made into public parks or circular boulevards, and outside of the former walls the land would be laid out in belts, sometimes restricted to different classes of residences. These were called belts or zones. The term zoning, therefore, does not apply strictly in our cities where the different districts assume all sorts of forms, although in general there is a recognition of intensive use in the center of the city surrounded by belts of greater distribution as one

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19201 ZONING 319 goes toward the edge of a city, The creation of different districts, accompanied by the application of different regulations, was five years ago called districting, but this word was so apt to be confused with political districts that pubIic favor caught and used the word zoning, until now the zoning of a city is commonly understood to be the creation of different districts for different purposes, and for different kinds of buildings. In many European cities zoning in a more or less perfect form has been practiced. Those countries as a rule do not have written constitutions. The law pronounced by the supreme power is final. No court can set it aside. Building departments in cities could be instructed to accept some plans and refuse others in different districts. Sometimes a uniform architectural style was obtained by this rather arbitrary control of building departments. In Brenren a medieval appearance has been given even to new buildings because the building department would refuse plans unless of a certain design. In some cities industry was segregated in localities where the prevailing winds would take the smoke away from the city. Sometimes these regulations are arbitrary or based on aesthetics. The ease with which they could be enforced probably prevented the adoption of a comprehensive plan with the details thoroughly worked out. However that may be, our cities have found a comprehensive zoning plan adapted to states whose government depends on a written constitution, and where the courts can set aside legislative acts as unconstitutional. For a long time people supposed that zoning was impossible in our cities as contrary to our written constitutions. This impression was wrong. The courts had said nothing to warrant this impression. On the contrary the courts had repeatedly put themselves in line with sensible zoning and against arbitrary zoning. The reader is assured at this point that he does not have to be a judge or a lawyer to understand the fundamentals of zoning. They are plain common sense and Will appeal to any ordinary city official or property owner. The chaotic conditions described in the early part of this article were due to the inability of the individual to protect himself. The power of the community was the only safeguard and the community had not discovered how to exercise its power. Some landowners did not consider that they really owned their land unless they were free to do anything and everything with it that was possible. Others would gladly treat their neighbors fairly if they had any assurance that their neighbors would do the same. The truth is that no man can make the best we of his own unless his neighbors are required to make such use of their own as not to injure others. The landowner who is free to put up a skyscraper covering 100 per cent of his land, and opening his windows on his neighbors’ land, may think that his 10 per cent net earnings are a justification of the righteousness of unhampered use of his own property, but when his neighbors put up similar buildings and his rent goes down until it pays barely 2 per cent on his investment, he realizes that fair regulation which would have divided the light and air between him and his neighbors and allowed him to earn a steady 7 per cent or 8 per cent on his investment would be best for him in the long run. But some will say, “If we are not allowed to do as we choose with our own property, the public ought to pay us our damages.” It is a fact, however, that fair regulations compelling the division of light and air are a benefit to both

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330 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May owners. One owner gives up something of his absolute ownership and use and in return he receives something from his neighbor. The people of every state have the inherent right to pass laws for the public safety, health, morals and general welfare. Call it community power or police power-the meaning is the same. It is commonly called the police power, which is something of a misnomer because it has nothing to do with the police. If we think of police power as community power, we will have it about right. It is that power which the state employs for fire protection, for sanitary regulations and for preventing the spread of epidemics. One does not assert that the public must pay him something when the health department says that he must be vaccinated, and yet he is giving up something of his absolute freedom. His compensation is that he, along with all of his neighbors, is protected against the spread of smallpox. Fireproof requirements, plumbing rules, tenement house laws, strength of construction requirements, all come within the police power. They are exercised without compensation being made to the private owner subjected to regulation. The courts rigorously uphold these laws and ordinances, scrutinizing them, however, to see that they are related to health, safety, morals and the general welfare of the community. If they are employed merely on a whim, or for aesthetics or some sentimental object, the courts will not support them. The popular notion and to some extent the official, has prevailed, that if different regulations are enforced in different parts of the city, it cannot be done under the police power but must be done under eminent domain, and compensation must be made. They forget that the health and safety of the community may require different regulations in different parts of the city because the needs of different parts of the city are different. The police power can as well be employed for zoning as for uniform sanitary and fire protection laws. It must, however, similarly be confined within the limits recognized by the courts. That is, zoning must be done with relation to the public health, safety, morals and general welfare. If it is done arbitrarily or by whim or for aesthetics or for purely sentimental purposes or with unjust discrimination, the courts will not uphold it. Although the police power, as recognized by the courts of our country, adapts itself admirably to the zoning of cities, yet many cities seem to think that they are safer in employing eminent domain. The exercise of eminent domain requires that property or rights over property shall be taken for a public use and that just compensation shall be made. In the very nature of the case it is not applicable to zoning because zoning should cover the entire city, not merely a part. It is for the benefit of all private owners, and is not any more a taking for public use than vaccination is a taking for public use. The expense of appraisal would be calamitous and the spreading of compensation on other property according to benefit would be impossible. Moreover, a vital city is growing and changing. It cannot be run into a fixed mould where it will stay forever. Police power zoning can be altered to fit the changing needs of a growing city, but zoning by condemnation would ossify a city. Some cities after making a mistake in zoning and receiving a setback from the courts, think they must have a constitutional amendment permitting zoning. Constitutional amendments regarding the police power should be avoided unless they are absolutely necessary. The police power

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19201 ZONING 391 residing in the state legislature should be ample for zoning if zoning is done wisely. The first comprehensive zoning in the United States was done in Boston. A building height of 80 feet was allowed on some main thoroughfares and a limit of 125 feet was imposed on new buildings on all other streets. This ordinance was attacked in the courts for unconstitutionality, but was upheld by the highest court of Massachusetts and was affirmed by the supreme court of the United States. Los Angeles followed with a zoning plan which divided the city into residential and non-residential districts. Under this ordinance, which was retroactive in form, the city authorities ousted a brick yard around which a residential district had grown up. The owner of the brick yard attacked the ordinance on the ground of unconstitutionality but the ordinance was upheld both by the highest court of California and by the United States Supreme Court. Other cities have as a rule considered that it is unduly harsh to make a zoning law retroactive, considering that existing uses and buildings should be allowed to continue subject to certain rules which tend gradually to make them conform to the requirements of the district. After the Boston case was decided and before the decision of the Los Angeles case, the city of New York under the leadership of George McAneny, then a member of the board of estimate and apportionment, made a thorough-going study of skyscrapers the world over but with special relation to the skyscraper district of New York. The city concluded that protective regulations were needed not only in the skyscraper district but throughout the city and not only for high buildings but for height, bulk and use. The first step was to obtain the passage of a legislative enactment granting the police power of the state to the city for the purpose of dividing the city into districts according to height, bulk and use of buildings with power to make appropriate regulations for each district and with a provision that the regulations might differ in the different districts. The ordinance which the city adopted under this law is supplemented by three maps of the entire city. One map shows a set of districts laid out according to heights allowable; another shows a different set of districts outlined according to the area of the lot that new buildings therein may occupy; the last map shows districts outlined according to allowable uses of land and new buildings. Berkeley, California, and St. Louis, Missouri, followed soon after New York. Other cities followed rapidly. How does zoning protect in actud practice? In general it stabilizes buildings and values. Most of all it conserves the future. Zoning does not endeavor to put existing stores out of residential localities or apartment houses out of private home localities or factories out of business localities. It regulates new buildings and changes of’uses. Although it is possible that under the Los Angeles case zoning could go further and oust inappropriate buildings, yet it is considered unwise to do this and successful zoning endeavors to protect investments rather than destroy existing property. When one considers that the great cities of our country will in all likelihood continue as centers of great populations for centuries, one realizes that the harm already done by indiscriminate building is of small account if the future of the city can be protected. The zoning ordinances and maps differ somewhat in the different cities that have adopted zoning. The interested city official or citizens’ organization should obtain copies of the various

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334 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May ordinances and maps which every city will gladly furnish at a nominal cost. The reader must assume that the zoning plan described in this chapter will vary in its details in different cities. New York, for instance, allows buildings on certain broad streets in the skyscraper district to go up 4150 feet on the street line before they begin to set back. Smaller cities do not allow such heights, and New York would not have done so if existing buildings of great height had not made it impossible to adopt a more sensible limit. Limitations for new buildings vary in the different districts, a higher building being allowable in the intensively used parts of the city than in the outskirts. Usually the allowable height has a relation to the width of the street. New York has %+,a, 13, lt and 1 times height districts. This means that a new building in the 2 times district can be built to a height on the street line of 2 times the width of the street. After reaching such a height it must set back at the rate of 1 foot for every 4 feet of additional height. If a street is broader than 100 feet, the building is not allowed any additional height, and if a street is narrower than 50 feet the building need not be correspondingly lower than one erected on a 50 foot street. Towers are allowed of an unlimited height, and steeples, chimneys and other structures defined in the ordinance are excepted from the height regulations. Towers, in the opinion of many, afford a variation in the appearance of a city, prevent monotony, and bring an interest which the city would otherwise lack. Some experienced engineers maintain that allowable heights should not be related to street widths, but this is not the prevailing practice. The setbacks required after the building has gone to the allowable height on the street line are for the purpose of affording access of light and air to the street itself. Provisions of a similar nature apply to the rear of such buildings. Height regulations therefore not only limit height of new buildings but insure a fair division of light and air among lot owners. The erection of unnecessarily high skyscrapers is no longer a sign of city progress but rather a sign of city ignorance. Buildings of moderate height broaden out a business center. Values are equalized instead of being absorbed by a few. Office business can be conducted in the daylight instead of under artificial light. There is greater convenience and economy in every way. One would say that economical reasons would sooner or later prevent people from building skyscrapers. But every little while a person or business comes along who wants to advertise itself by a monument even if the earning power of the building is very small. The usual trouble with these monuments is that they hurt their neighbors. Not less important in the height regulations are the provisions for division of light and air between lot owners. As a building goes higher its side courts must be larger. Details for yards and inner and outer courts should be examined in existing ordinances. The setbacks help to create pyramidal structures which leave light and air for their neighbors. Height regulations alone, however, are not enough and they do very little to prevent congestion where land values are low. Just as lower heights may be required in the outlying districts, so it is practicable to prevent building on the entire lot in the outlying districts. Then, too, industrial buildings and warehouses along watercourses and railroads sometimes are lighted from above or need no light at all. Such buildings can properly occupy the entire lot. These considera-

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19201 ZONING 323 tions make it necessary to employ another set of regulations commonly called area regulations. They supplement the height regulations. Districts of the one sort need not be coterminous with districts of the other sort and in New York they are not. These area districts in New York are A, B, C, D and E. The A districts are warehouse and industrial districts, usually along watercourses or railroads or land which for one reason or another is best adapted to storage and industry. Here new buiIdings can cover 100 per cent of the lot. The other extreme is the E district adapted to private detached residences, where the new buildings may cover not over 30 per cent of the lot. B districts are adapted to the large oflice, business, and high apartment house IocaIities. C districts are adapted to non-elevator apartment houses, and D districts to one and twofamily private residences in blocks. The E zones of New York, or zones corresponding to them in other cities that have adopted zoning, have been considered one of the most important results of the new movement because they perpetuate the highly restricted residential developments. In New York it is not practical to put up any residential building on 30 per cent of the lot except a one-family private residence. Most of such restricted areas have been placed in E zones on the petition of the property owners. They are so popular that many new E zones have been created. It was at first feared by some that land in these E zones would be less valuable because the building area was so highly restricted, but it turned out that the protective features were so great that the supply of land in these areas could hardly meet the demand. In some cases where restrictions expired or were about to expire the E zone requirements have made the locality better than it was before. Owners of vacant corner lots that had been held out of use so that apartment houses might be built, have in almost every case improved them with high-class one-family residences. In such districts owners of houses instead of letting them become dilapidated when the private restrictions were about to lapse have improved their homes, adding private garages, sun parlors and substituting copper for tin. These E districts are preventing well-to-do citizens from leaving the city to settle with their families in outlying villages because they offer an opportunity for villa homes protected against all injurious buildings for an unlimited time. In them people can have the advantages of open surroundings and still be near their business, all city conveniences, and have the benefit of low car-fares. One may ask why they are called E districts instead of private residential districts. The reason is that themethod of creating districts graduating from 100 per cent to 30 per cent is a plain employment of the police power with a recognition of health and safety considerations, and the courts will protect a plan which is based on such a foundation. In New York at least it presupposes that an apartment house covering not over 30 per cent of the lot would be substantially as safe and healthful as a one-family house, although as a matter of practice landowners in E districts will not erect apartment houses. The courts will recognize the common sense of bringing light and air in greater abundance to suburban districts where children are growing up. There is a temptation in cities where land is less expensive to create one family house districts as use districts. This has sometimes been dene under the apprehension that a 90 per cent restriction would not pre-

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324, NATIOKAL MUNICIPAL REVIEW SUPPLEMENT [May vent the two-family or apartment house. Each city must judge for itself whether it will adopt the safe course of creating E districts depending on the 30 per cent limitation preventing hurtful buildings or whether it will follow the more hazardous course of considering private detached residences a separate use. The reason that it is hazardous is because the court is likely to inquire what dangers to health and safety exist in two-family houses, each built on a small fraction of the lot, which do not exist in one-family houses similarly built. Each city in framing its zoning ordinance and maps must keep in mind that it is done under the police power and that the requirements must have a relation to public health, safety, morals and the general welfare. The courts of some states of the far West are undoubtedly willing to recognize a greater scope of the police power than those of some of the more conservative Eastern states. Private restrictions can continue along with zoning regulations. It is undoubtedly desirable to supplement zoning regulations with private restrictions in the opening of new developdents for residences. Inasmuch as private restrictions are contractual and zoning is done under the police power, the one group has no particular relation to or effect upon the other. Private restrictions cannot be copied in zoning. They rest on different bases and are enforced in different ways. Private restrictions are the result of private bargains. Zoning is a public requirement imposed directly or indirectly by the state. Zoning to regulate height and area would be only a partial remedy. If the protection of zoning stopped at this point, factories, garages, stores and residences could be built anywhere, and there would be no protection against constant injury. Consequently a third class of regulations is qecessary concerning the use of land and buildings and different districts must be created to separate these uses. The use districts need not correspond with the height or area districts and commonly do not. In New York the use districts are,-unrestricted, in which residences and buildings as well as factories can go; business districts, in which residences, as well as business can go; and residence districts, in which business and industry are excluded. Newark, New Jersey, has four use districts,heavy industry, light industry, business and residence; and excludes new residences from the heavy idustry districts which are mainly in or near the salt meadows. Some cities, particularly on the Pac& coast, have created rmmerous use districts, including districts for private residences, districts for apartment houses and districts for public buildings. In the opinion of the author use districts should be few in order that they may be upheld in our more conservative states. Until we have further light on the subject from the courts, the districts should be, with the possible exception of peculiar circumstances, heavy industry, light industry, business and residence. Heavy industry districts are intended for industries of a nuisance character and works requiring a large spread of yards and buildings. If these districts can be decided upon before or simultaneously with laying out streets, the blocks should be made larger than for ordinary residence or business. They will usually be near railroads and watercourses. Some well-known advisors consider that residences should not be permitted in heavy industry zones. It will be noticed that this is a departure from the general rule. In New York npw stores or residences may be built in industrial zones. The argument for the exclusion of residences is

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1 SaO) ZONING 325 that the surroundings are unhealthful and residences in such locations are almost sure to become neglected and unsanitary. The author, however, is of the opinion that, if the land is SUEciently high for drainage and cellars, it is a hardship to the owner to be deprived of using his land for residences. The residences do not hurt the neighboring factories, and the grounds of prohibition cannot be based on the maxim that one should so use his own as not to injure another. Sometimes heavy industrial districts must be laid out far in advance of use and it would seem to be a hardship to require an owner to pay taxes and perhaps hold his land without the slightest income awaiting the coming of a heavy industry use. Then, too, a piece of land in a heavy industry zone might be too small for a factory and yet be surrounded by large factories. Surely it is a hardship to prevent the owner from making use of it for that purpose which as a last resort a man can always adopt, i.e., for small homes. Where land like the Newark salt meadows is too low for drainage or cellars, the case is somewhat different. Zoning, however, must not be arbitrary. Regulation becomes arbitrary when it prohibits every possible use of land and compels the owner to hold it in idleness. Light industry zones and business zones are self-explanatory. Public garages or garages for more than five vehicles should be permitted in these two zones only on special permit of a board of appeals. In New York they are classed among heavy industry. A public garage may be as hurtful in a light industry district as in a business district. In New York the board of appeals can allow a new garage for more than five vehicles in a business district only when there is already one such garage in the street between two intersecting streets. It has been found that light industry cannot be entirely excluded from business districts. Department stores, millinery shops and jewelry stores need to devote a part of their space to light manufacture and this should be permitted in some way. In New York it is provided for by allowing one-quarter of the store space to be used for light industry. Main thoroughfares and car-line streets almost always tend to become business streets. It is well to consider this in zoning localities not yet built up. If small retail stores and shops are compelled to go to certain localities, they should be compelled to go to the main thoroughfares and car-line streets. How often it has happened in our great cities that main thoroughfares have been built up with splendid homes which have later proved to be out of place. Zoning seeks to set aside streets for a long period of fixed usefulness. This object is best attained by giving privacy to private homes. If five or six stores have come into a block of residences fronting on a street car line or a main thoroughfare, it is likely that the street should be put in a business district. It has begun to show its normal destiny and zoning it as a residence district will usually not save the residential values but on the other hand will hold back the development of normal business values. Residence districts should allow dwellings, clubs, churches, schools, libraries, hospitals, railroad passenger stations, farm buildings, greenhouses and their usual accessories. A private garage as an accessory to a home constructed for not more than five vehicles should be allowed in a residence district. Some have asserted that hospitals and sanitariums should not be allowed in residence districts as they may sometimes be offensive. The question, however, arises as to where they should be

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placed. Surelynot in industrial or business districts. It might be well to allow their construction only on a special permit from a board of appeals but this has not yet been compelled in any comprehensive zoning system. Billboard permits are not issued in residence districts in New York. The zoning ordinance has proved to be the first effective control of this subject, recognizing that although bill-boards may be proper in some districts, they should not be scattered among homes, schools and churches. It should here be said that there is a natural tendency for cities of medium size whose nearby areas are not congested to favor the control of different kinds of residential units by creating one-family house districts, two-family house districts and multi-family house districts. This tendency has recently been so great that the author hesitates to condemn it. Where city officials are convinced that an area limitation will not produce one or two family houses they probably must take the risk of the courts’ approval of districting by naming the number of families. Where, however, conditions are such that division of light and air can be provided for by area regulations as has been done in New York, the author is of the opinion that the recognized police power will more nearly justify the zoning. Zoning is not usually retroactive. That is, the height, area and use replations prevent city building departments from issuing permits to new buildings which do not conform to the zoning requirements. But after a zoning plan is adopted old factories will be found in residence and business districts, and stores will be found in residence districts. The question arises “What shall be done with these non-conforming buildings? ” It would be a great hardship to the owners to compel them to alter them at once to 346 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May conform with the requirements of the district. The zoning ordinance therefore must provide for the gradual elimination of such buildings in a way that will fairly preserve the investment of the owner. The owner can reasonably say that he should be allowed to use his building for the purpose for which it was constructed. On the other hand when he comes to alter or enlarge his building, the community can reasonably say that, although he has the privilege to continue his old building, he has no privilege to alter it or enlarge it in a way contrary to the requirements of the district. In New York an owner of a store or light industry building which does not conform to the district may change it to any other use of the same grade provided he does not enlarge it at all or reconstruct it. If, however, it is a heavy industry non-conforming building, it cannot be changed to any other use even of the same grade if any structural alteration is made. It will be seen that these rules as time goes on tend to make the buildings conform with the requirements of the district. The question also arises with these non-conforming buildings whether, if a part of the building only is used for a non-conforming use, such non-conforming use can extend throughout the building. The rule in New York is that a non-conforming use cannot be enlarged at the expense of a residence use. But the better rule would undoubtedly be that a non-conforming use should not be enlarged at the expense of a conforming use. Each city will need to adapt its rule of non-conforming uses to its own peculiar requirements. The ordinance of St. Louis has given a board of appeals the discretion to allow alterations in use, reconstruction and enlaxgement of such buildings. It would seem, however. that this important subject ought to be

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19201 ZONING 337 governed by law rather than by the judgment of a board. The rules of non-conforming uses can be and should be rigid. They may be difficult to state but this fact does not justify their being left entirely to the discretion of a board. Another subject related to existing non-conforming buildings and uses is the prevention after the zoning ordinance is adopted of the intrusion of non-conforming uses into conforming buildings. For instance in a residence district a home owner may try to carry on a sweat shop or a restaurant or a junk yard. How shall he be prevented? Evidently this is beyond the power of control by permit. The wrongful intrusion must be prevented. The ordinance should make such act unlawful and make provision for ousting the unlawful use. In New York this duty is placed on the fbe department. The fire department can send notice to the offending owner directing him to quit the unlawful use. If the owner does not do so, the facts are turned over to the corporation counsel who can bring the offender before the magistrate’s court for fine or imprisonment. IV. HOW TO OBTAIN 4 ZONING PIAN FOR A CITY The state legislature is the repository of the police power, The fact that the legislature creates a municipal corporation undoubtedly endows such corporation with certain necessary functions under the police power. If this was not so, the city could not transact its business. Before, however, a city proceeds to adopt a zoning plan, it is wise to obtain a spec& donation of this power from the state legislature. This can be accomplished by a Iegislative act applicable to all cities of a state, or by amending the charter of the city. An existing home rule act or general provision should be carefulIy scrutinized before it is depended upon, in order to make sure that the city possesses the police power so far as height, bulk and use of buildings are concerned, together with the right to. impose different regulations on different districts. The decisions of the courts do not draw the line clearly between the inherent police power of a city merely because the legislature has. allowed it to be a city and the larger donation of police power requisite for a zoning plan. Cities have adopted fire limits which are a simple form of zoning and have done this without any specific grant of power from the legislature. New York kept on the safe side by having its charter amended by the legislature in this respect and also to provide that the board of estimate after a zoning plan WM once adopted could not alter it excepting by a unanimous vote in certain cases, and to provide for a board of appeals to be created by the local authorities with power to pass on border-line and exceptional cases of buildings. Should the zoning plan be prepared by a city planning commission or a zoning commission? Should such a commission be composed of officials or citizens? Should the council or a commission be empowered to enact the ordinance? Each city wiB decide these questions, keeping its own peculiar needs in mind. The author gives his own conclusions as the result of his own experience and his observation of progress in many cities for what they are-worth. The plan should be prepared by a commission, a majority of whose members should be citizens serving without pay. Certain officials qualified by their experience and proved judgment may be added. No oEcial should be added for the purpose of educating him or swinging him over as an advocate of zoning. The com-

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328 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May mission should be unhampered in making suggestions and it has much greater freedom if its makeup is not so largely official that its doings are taken to represent the intention of the administration. A zoning commission has enough to think about without being compelled to consider whether its composition will reflect on the administration or not. If the work goes on wisely with frequent conferences with property owners of all classes and with frequent hearings, there is no danger but that the excrescences and theoretical trimmings will be rubbed off. After the plan is worked out after many hearings and conferences it should be reported to the council who should have the power to hold further hearings, refer it back to the commission if desired and ultimately to enact it. The adoption and amendment of a zoning plan belong to the council as much as the street layout. Moreover the natural growth and changes in the city will require intelligent amendment af the zoning plan year by year and it is probably impossible to expect that citizens serving without pay can keep in touch with the needs of the city so well as officials assisted by the constant advice of the city departments. It is of doubtful wisdom to put actual legislative power in a city planning or zoning commission. In most cases it is best for a zoning commission to prepare the plan. There is a difference between the planning of public streets and places and the working out of a zoning plan. The former has to do with land and buildings owned or to be owned by the city. Zoning has to do with the regulation .of private property. The two fields are therefore quite distinct. More rapid progress is made by creating a zoning commission to perform a specsc piece of work. If the zoning commission can perform its work well and secure the adoption of the plan, it has aided the work of laying out public streets and places and the locating of public buildings. Its work is fundamental. It should be carried on intensively and not as an incident in general city planning. A farsighted zoning commission Will early enlist the favor of the owners of small homes and stores. They can be shown in the beginning how they can be protected against flats, garages, junk yards and factories. To feature Fifth Avenue, Euclid Avenue or Michigan Avenue is the wrong way to begin. Then, too, throughout the preparation of the plan property owners of all sorts should be taken into the confidence of the commission. Taxpayers’ associations, boards of trade, manufacturers’ associations, fire insurance men, savings banks and title companies, and owners of high buildings, low buildings and vacant land should all have a part in advising what will stabilize property and prevent confiscation. Zoning looks mainly to the future. The zoning of built-up localities must recognize actual conditions and make the best of mistakes of the past. But the zoning of open areas, while following desirable natural tendencies, must check the undesirable tendencies. Zoning should follow nature and it should not be forgotten that the city has a history. There will be a temptation for radical individuals and officials to use zoning as a field for experimentation. This is a mistake. The scope of the police power is measured by the universality of its recognition as well as the universality of its need. Some of the features of modern zoning have not yet been so widely approved by the courts that cities newly preparing plans can afford to go very far in advance of the procession. Such a city will be tempted to try piecemeal zoning. On the appointment

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19901 ZONING 339 of a zoning commission home owners in localities subjected to some immediate danger will go to the commission and show how they must have an immediate remedy because private restrictions are about to expire or a factory is about to be built or plans for a public garage are being filed. If the zoning commission refuses to act, they go to the council. Sometimes more time is lost in debating the items of proposed piecemeal zoning than would suffice to zone the entire city. Such piecemeal zoning should not be done. In the long run it delays. Precarious localities should get behind comprehensive zoning and hurry it up. Comprehensive zoning of an entire city is strong because localities substantially similarly situated are treated alike. Piecemeal zoning is weak because it is discriminatory. Piecemeal zoning is apt to produce test cases ful1,of danger because, for instance, an owner of a vacant lot is prevented from building a garage in one residential locality when a similar owner in a similar locality ten blocks away is allowed to build a garage. This is discriminatory on its face and is likely to incur the criticism of the courts. Then if some adverse decision is handed down in such a test case, critics of zoning and sometimes newspapers will assert that the courts have declared zoning to be unconstitutional. More time is taken to explain how the mistake was made and comprehensive zoning is still more delayed. The favor of precarious districts is needed in advancing a general plan. To zone all such districts first is to throw away part of the help which a zoning campaign needs. In New York, St. Louis and Newark the temptation to allow piecemeal zoning was successfully resisted. The actual damage that occurred was almost in$nitesimal. If, however, the piecemeal plan had been started the cities might not be zoned today. Another argument against piecemeal zoning is that one cannot know how to zone any spot in a city until he knows how to zone the entire city because the use of any one locality has some relation to all others. The zcming of the entire city should be preceded by an accurate mapping of existing buildings and uses. Present and future transportation lines must be taken into account. In New York a chart was made showing height of buildings, another showing frame buildings, another showing use, whether industrial, business or residence, another showing density of population and another showing by different colors the distances of every part of the city from City Hall measured by travelling time on rapid transit railroads. These fundamental data assist in preparing a foundation of facts instead of a foundation of guesswork. It is apparent that the members of a zoning commission cannot personally attend to the collection of data, preparation of maps and the working out of innumerable detail problems. The city must furnish the zoning commission with a staff headed by a competent expert. The chief of staff should be more than an ordinary engineer or architect or lawyer. He should be a broad-gauge expert in the distribution of urban population, in the layout of streets and public places, in forms and materials of buildings and in the limitations imposed by law on the exercise of the police power. No city should be too proud to retain an outside man. New York city took five years and did not do the job as well as she could do it today in two years. The reason was that she was plowing new ground and there were almost no precedents to help. But some one may say “Why not get the ordinances and maps from zoned cities and pick out what seems to be the best?” The reason is that

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330 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May imitation is likely to be disastrous. No two cities are alike. Each deserves an accurate study of its own growth, tendencies and needs. The heights of buildings allowed in New York are far too great for imitation. It was the case of the horse being stolen before the barn door was locked. Lower heights in the skyscraper districts could not be imposed with fairness to owners of partially improved land. Too great congestion in tenement house districts is allowed. This was due to some extent to existing conditions and to some extent to the novelty of the enterprise which properly induced caution. The chief of staff should know the reasons that have prompted different methods in different cities. He will, of course, have before him the ordinances and maps of all other cities, but he will be more than an imitator. We are now ready to listen to the question of the intelligent reader which at this point is quite sure to be “How can you run a city into a zoning plan mould and expect it to stay there; do not cities have to grow and change?” The answer is that zoning encourages growth while at the same time it prevents too rapid changes. Every vital growing city must change and the zoning plan must be capable of change. The same authority that has adopted the ordinance and maps must have the power to amend them. On the other hand a high degree of permanency or stiffness must be insisted upon, otherwise the property owner who puts up a fourteen-story building in compliance with the zoning law might be disappointed to find that the council had altered the law so that a twenty-story building might go up on each side of his building. He would then be penalized because he obeyed the law. Or a man might put up a fine residence in an outlying residence district depending upon its permanence and find that the council had changed it to business and he was likely to have a butcher store on one side and a grocery store on the other. It is apparent that any provisions inserted in the ordinance itself are not a sufficient protection to owners to build in conformity with the zoning ordinance because one council may undo the work of its predecessor. The only safeguard is in a provision of the legislature which will prevent the city council from freely changing the maps and ordinance. New York obtained an amendment to its charter from the legislature to the effect that the city authorities could not change the ordinance or maps without Emg and advertising a public hearing, and this further provision was added that, if 20 per cent of the frontage affected by the change, or 20 per cent of the frontage opposite, or 20 per cent of the frontage in the rear protested in writing against the change, then the unanimous vote of the board of estimate was required to make the change valid. Under a legislative requirement of this sort there is little danger of hasty action, and if a protest of 20 per cent of the frontage is sled it is practically impossible for the applicant to obtain the unanimous vote of the council unless his case is sound and imperative. Cities which have large powers under the home rule act should ask their state legislatures to impose this check or some similar check upon the city council. Another provision that should be supplied by the state legislature is to empower the city to create a board of appeals. The city cannot endow a board of appeals with power to decide certain border-line cases of buildings which will be enumerated in the ordinance itself, or to make exceptions in the provisions of the law to carry out the spirit of the law and prevent unnecessary hardship. It is a safeguard in the administration of the law to have a board of appeals. The letter

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19201 ZONING 33 1 of the odnance and maps may be the extreme of hardship. No words can be used in the ordinance that will provide for the multitudinous contingencies of new buildings. If there is no board of appeals to apply the spirit of the law and vary its letter, the exercise of the police power may in certain cases be arbitrary and incur the criticism of the courts. Moreover it is a great safeguard to preserve that elasticity which a board of appeals can give to a zoning plan in order to minimize the danger of a pronouncement of unconstitutionality by the courts. It is a well-recognized rule of the law that before an aggrieved owner can obtain a writ of mandamus from the court against a building superintendent to compel him to file his plans and issue a permit, he must exhaust all of the remedies afforded him by the city. This means that before he can bring up the question of unconstitutionality he must bring his plans before the board of appeals. Experience has shown that a wise board of appeals can practically always mitigate the unfairness involved in the letter of the law if the applicant has a sound and deserving case. If, however, the board of appeals will not adjust his case to suit him, he goes before the courts with all of the chances against him, for the courts will say that his plans run counter to an impartial plan covering the entire city and that in addition a fair board of appeals having the power of adjustment in cases of unnecessary hardship decided against the applicant. Every decision of the board of appeals shouId be reviewable by the courts on writ of certiorari. Such review, however, involves no danger of overthrow of the law itself by the courts but only a possible limitation of the functions of the board. Some will say that there should be no board of appeals because such a board will be too easy and break down the law by granting favors. Acorrupt or incompetent board of appeals could do a vast amount of injury but it is the business of the mayor or appointing power to see that the board is made up of impartial and experienced men. The council should have power to amend the maps and ordinance and the board of appeals should not. The board of appeals should have the power to vary the ordinance and maps in cases of specific buildings and the council should not. In other words the council should have charge of the maps for the law-making power should control the fundamental restrictions. The board of appeals should have charge of the application of the ordinance and maps to specific buildings because the council does not have the time or preparation to go into the details of exceptional circumstances as to specific buildings. There should be no confusion of the powers of the council and the board of appeals. The field of each is entirely separate and distinct. In New York the board of appeals is authorized by the ordinance to grant a permit for a public garage in a business street if there is already one public garage or public stable in that street between two intersecting streets; to allow the projection of a business buiIding into a residence district or a factory building into a business district in certain specified cases at the borderline between two districts, and to permit a temporary non-conforming use in outlying undeveloped areas. Other powers similar to these are enumerated. Their power to vary the ordinance and maps in cases of unnecessary hardship is an entirely separate power and is given directly by the state legislature. V. WHERE TO GET INFORMATION The reader can hardly hope to obtain from this article more than a brief

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332 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May outline of the subjects of zoning. The councilman, city engineer or legal adviser of a city contemplating zoning will desire to know where he can obtain more complete information on what has been done or attempted, Probably the most exhaustive books that have been published, collecting data from all cities, giving full tabulation and maps, and with discussions of legal problems involved, are the report of the heights of buildings commission of the board of estimate and apportionment of the city of New York, December 23, 1913, and the report of the commission on building districts and restrictions of the board of estimate and apportionment of the city of New York, June 2, 1916. These reports were made during the preparation of the zoning ordinance and maps for New York. These volumes will be found in many public and municipal libraries. The following cities have to a greater or less extent adopted the zoning plan : Alameda, Cal. Berkeley, Cal. Boston, Mass. Los Angeles, Cal. Minneapolis, Minn. Newark, N. J. New York, N. Y. Oakland, Cal. Palo Alto, Cal. Sacramento, Cal. St. Louis, Mo. Washington, D. C. By addressing the chief engineer, information can usually be obtained from any of the above mentioned cities. The National City Planning Conference has for the last eight years carried OII an unremitting and intensive study of this subject. It has undoubtedly been not only the principal advocate and supporter of zoning but also the most active disseminator of information about zoning. The American City Planning Institute, &listed with the National Conference, has devoted a series of meetings to discussing the principles of zoning from every angle, receiving suggestions from every part of the country in the hope that it might promulgate an authoritative statement of such principles. The annual reports of the National Conference contain a great deal of helpful material on zoning. Nelson P. Lewis, chief engineer of the board of estimate and apportionment, Municipal Building, New York city, is president of both organizations, and Flavel Shurtleff, 60 State Street, Boston, Massachusetts, is the secretary, VJ. STATEMENT OF PRINCIPLES OF ZONING FORMULATED BY THE AUTHOR (1) The subject in relation to city planning should be called zoning, the boards zoning boards or commissions. In laws and ordinances the word zoning should be used in the title and the word districts in the body of the law to specify the areas affected. (%) Zoning is the creation by law of districts in which regulations differing in different districts prohibit injurious or unsuitable structures and uses of structures and land. (3) Zoning should be done under the police power of the state and not by condemnation. (4) Zoning by the exercise of the police power of the state must relate to the health, safety, morals, order and general welfare of the community. It follows therefore that police power zoning must be confined to police power reasons such as fie risk, lack of light and air, congested living quarters and other conditions inimical to the general welfare. The preventive regulations based on these reasons, which necessarily must be applied differently and in different measure in different districts. naturally group themselves into zoning according to use of structures and land, according to height of buildings and according to portion of lot covered by buildings. Zoning might go further and embrace the subjects of fire limits, setbacks, and doubtless other classes of regulations. Enhancement of value alone, or

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19201 ZONING 333 aesthetics alone has not thus far been considered by the courts to be a su5cient basis for zoning when done under the police power. (5) Before enacting zoning regulations a city should have obtained the power to do so from the state legislature. The essential statement in such grant of power is that the city may impose different regulations for structures and for the uses of land and structures in dderent districts. (6) Zoning is part of the city plan and should be applied to land as early as possible and where practicable at the time the street layout is adopted. Studies for zoning in undeveloped districts should be accompanied by studies for at least main and secondary thoroughfares. (7) Zoning when applied to existing cities should be adapted generally to existing conditions but should endeavor to check undesirable tendencies. (8) In the same city, localities having substantially a lie character and situation should be zoned in the same manner. This principle should prevent arbitrary, piecemeal or partial zoning, which is dangerous and may be illegal. (9) Zoning should be sufficiently stable to protect those who comply with the law, but at the same time should be susceptible of change by the municipal authority under strict checks prescribed by state law, so that it can be altered to meet changing conditions or conditions not adequately recognized. (10) Provision should be made that interested property owners may initiate the consideration of changes, but the actual application of the zoning regulations to the land and any changes therein should rest with the municipal authority and not with the property owners. It is a wise expedient to require more than a majority vote or even a unanimous vote, of the municipal authority to changes unless a substantial majority of the property owners affected thereby have given their consent thereto. (11) Zoning regulations may properly be supplemented by restrictions in deeds based upon purely aesthetic reasons or for the purpose of creating a uniform residential development or for other purposes. (le) Regulations applicable to all buildings of a class regardless of location, such BS relate to plumbing, strength of material, safety devices, or protection of employes against fire should not be placed in a zoning law. They are properly part of a housing law, factory law or building law. Only those requirements which differ in different districts enter into a zoning law. (13) Use districts normally comprise residence, business, light industry and heavy industry districts. The kinds of industries prohibited in light industry districts should be enumerated. Residences should be permitted in business districts and both residences and business should be permitted in light industry districts. It is a moot question whether and under what conditions residences should be prohibited in heavy industry districts. Classes of use districts should be few. The more minute adaptation to local needs should as a rule be provided for in the area and height zoning and by permitting special uses under conditions stated in the ordinance or under the administration of a board of appeals empowered to make building exceptions. There is lack of agreement as to the desirability and legality of prohibiting apartment houses, flats, tenement houses and other multiple dwellings in certain districts limited to single family dwellings. (14) Where zoning regulations apply only to new buildings (as is the safer practice) buildings occupied for non-conforming uses should be placed under constant pressure to become conforming through changes with the lapse of time. (a) Structural alterations made in a nonconforming building should not during its life exceed one-half its value, nor should the building be enlarged, unless its use is changed to a conforming use. (b) No non-conforming use should be extended by displacing a conforming use. (c) In a residence district no non-conforming building or premises devoted to a use permitted in a business district should be changed into a use not permitted in a business district. (d) In a residence or business district no nonconforming building or premises devoted to a use permitted in a light industry district should be changed into a use not permitted in a light industry district. (e) In a residence, business or light industry district no building devoted to a use excluded from a light industry district should be structur-

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334 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May ally altered if its use shall have been changed since the time of the passage of the ordinance to another use also excluded from a light industry district. (i) In a residence, business or light industry district no building devoted to a use excluded from a light industry district should have its use ,changed to another use which is also excluded from a light industry district if the building has been structurally altered since the time of the passage of the ordinance. (15) In business and industry districts towers within a prescribed height limit should be permitted but should not occupy over one-quarter of the lot area. They should be allowed on the street line all the way up, but should stand away from side lines according to a suitable rule. (16) Height limitations should be determined primarily by widths of streets and the use of the property. There should also be flat maximum limitations irrespective of street widths which should be fixed with due regard to local conditions. (17) Included in area limitations there should be a provision for the percentage of lot that can be covered and a limitation of families per acre or of the minimum square feet of lot area per family. (18) There should be an administrative board with power under state law: (a) To rectify on appeals the errors of building superintendents in passing on applications for building permits. (b) To decide borderline and exceptional cases of biddings where specified in the ordinance. (c) To vary the literal requirement of the law in individual cases of buildings where unnecessary and excessive hardship is caused and the intention of the law is equally accomplished by an alternative method to be prescribed. Not only should the powers of such a board be specified in the ordinance, but the state legislature should authorize the municipal authority to create such a board and to provide in the ordinance what borderline and exceptional cases it may decide. A larger vote than a mere majority should be required for an affirmative decision. Proceedings and records of the board should be public and members of the board should be removable for cause. Decisions of the board 3hOdd be subject to court review. VII. SUGGESTI(XNS FOR FORM9 OF LEGISLATIVE ENACTMENTS The acts of the legislature of the state of New York probably cover the subject of zoning more completely than those of any other state. Reference to these enactments is more confidently made by the author because they have been worked out from the ground up ‘in the most painstaking manner, and have stood the test of court construction in New York city. The statutes applicable to New York city will be found in Chapter IX “Statutes and Ordinances.” They are embodied in the charter of the city of New York. Appended hereto, however, is the New York legislative enactment granting zoning powers to all cities of the state. This is now the law. It is followed by a carefully prepared statute, containing the best features of the New York charter, with a few changes made desirable by court decisions. The proposed statute is to apply to all the cities of the state except New York and Rochester and is at the present writing pending as an amendment to the general city law in the state legislature. General City Law qf the State of New York CHAPTER 483 An Act to amend the general city law, in relation to the regulation of buildings and the location of trades and industries, passed May 15, 1917. (Section 20. Grant of specific powers. Subject to the constitution and general laws of this state, every city is empowered) : 24. To regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts and other open spaces, and for said purposes to divide the city into districts. Such regulations shall be uniform for each class of buildings throughout any district, but the regulations in one or more districts may differ from those in other districts. Such regulations shall be designed to secure safety from fire and other dangers and to pro-

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19201 ZONING 335 mote the public health and welfare, including, so far a~ conditions may permit, provision for adequate light, air and convenience of access, and shall be made with reasonable regard to the character of buildings erected in each district, the value of land and the use to which it may be put, to the end that such regulations may promote public health, safety and welfare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of buildings and enhance the value of land throughout the city. 25. To regulate and restrict the location of trades and industries and the location of buildings, designed for specified uses, and for said purposes to divide the city into districts and to prescribe for each such district the trades and industries that shall be excluded or subjected to special regulation and the uses for which buildings may not be erected or altered. Such regulations shall be designed to promote the public health, safety and general welfare and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suitability lor particular uses, the conservation of property values and the direction of building development, in accord with a well considered plan. PENDENG AMENDMENT An Act to amend the general city law in relation to the regulation of buildings and the location of trades and industries. The People of the State of New York, represented iu Senate and Assembly, do enact OJ follows: Section 1. Chapter twenty-six of the laws of nineteen hundred and nine, entitled “An Act in relation to cities constituting Chapter twentyone of the consoIidated laws,” as amended, is hereby amended by adding after Article 5, a new article to be Article 6-a, to read as follows: BUILDING AND Urn DISTRICTS 381. Board of Appeals. 1. The mayor of any city may appoint a board of appeals consisting of five members, each to be appointed for three years. Such board of appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section 20 of this act. They shall also hear and decide all matters referred to them or upon which they are required to pass under any ordinance of the common council adopted pursuant to such two paragraphs. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which they are required to pass under any such ordinance or to effect any variation in such ordinance. Every decision of such board shall, however, be subject to review by certiorari. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the city. %. Appeal how taken. Such appeal shall be taken within such time w shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and with the board of appeals of a notice of appeal. specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. 3. Stay. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by the supreme court, on application, on notice to the officer from whom the appeal is taken and on due cause shown. 4. Hearing of and decision upon appeal. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeals shall have power in passing upon appeals, to vary or modify any of its rules, regulations or provisions reIating to the construction, structural changes in. equipment, or alteration of buildings or structures, so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done. Certiorari to review decision of board of appeals. 1. Petition. Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any officer, department, board or bureau of the city, may present to the supreme court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented to a justice of the supreme court or at a special term of the supreme court within thirty days after the filing of the decision in the office of the board. Upon the presentation of such petition, the justice or court may allow a writ of certiorari directed to the board of ap peals to review such decision of the board of appeals and shall prescribe therein the time within which a return thereto must be made and served upon the relator or his attorney, which shall not be less than ten days and may be extended by the court or a jutice thereof. Such &3%. 2. Writ of certiorari.

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writ shall be retumabie to a special term of the supreme court of the judicial district in which the-,property affected. or a portion thereof, is situated. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. 8. Return to writ. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be s&cient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return must concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and must be verified. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law. which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. 5. Costs. Costs shall not be allowed against the board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. 6. Preferences. A11 issues in any proceeding under this section shall have preference over all other civil actions and proceedings. $33. Amendments, alterations and changes in district lines. The common council may from time to time on its own motion or on petition, after public notice and hearing, amend, supplement or change the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty-four and twentyfive of section 20 of this act. Whenever the owners of 50 per cent or more of the frontage in any district or part thereot shall present a petition duly signed and acknowledged to the common council requesting an amendment, supplement, change or repeal of the regulations prescribed for such district or part thereof. it shall be the duty of the council to vote upon said petition within 90 days after the filing of the same by the petitioners with the secretary of the council. If, however, a protest against such amendment, supplement or change be presented, duly signed and acknowledged by the owners of 20 per cent or more of any frontage proposed to be altered, or by the owners of PO per cent of the frontage immediately in the rear thereof, or by the owners of 20 per cent of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by the unanimous vote of the council. 584. Article lidited. This article shall not apply to the city of New York. Section 2. This Act shall take effect immediately. 4. Proceedings upon return. 336 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May VIII. OPINIONS OF THE COWTS SCOPE OF THE POLICE POWEB C., B. & Q. Railway u. Drainage Commissioners, 200 U. S., 561 City of Rochester 5. West, 164 N. Y. 510 Cusack 8. The City of Chicago, 267 Ill., 344; U. S. Supreme Court, %2 U. S. 626 (Jan. 15,1917) Watertown u. Mayo, 109 Mass. 316 Commonwealth 5. Alger, 7 Cush. 63 Fisher 5. McGirr, 1 Gray, 1 Commonwealth v. Tewksbury, 11 Met. 55 Baker u. Boston. 12 Pick, 184 Vandine, petitioner, 6 Pick, 187 Slaughter-House Cases, 16 Wall. 36 Cronin u. People, 83 N. Y. 818 Barbier o. Connolly, 113 U. S. 27 City of Chicago v. Stratton, 162 Ill. 494, 35 Shea u. City of Muncie, 148 Ind. 14,46 N. E. 138 Matter of McIntosh u. Johnson, 211, N. Y. 265. Reinman Q. Little Rock, 237 6. S. 171. People ex rel. Busching u. Ericsson (1914), 263 111.368,106 N. E. 915, L. R. A. 1915 D 607 People ex rel. Keller li. Village ofOak Park (1915). 266 Ill. 865, 107 N. E. 636 People ex rel. Huntley Dairy Co. u. Village of Oak Park, Supreme Court of Illinois, April 22. 1915, 268 111. 256 People ex rel. Lincoln Ice Co. u. City of Chicago, Supreme Court of Illinois, October e8, 1913, L. R. A. 84 260 Ill. 150 Evans a. Reading Chemical Co., Supreme Court of Pennsylvania, March 12, 1894, 28 Atl. Rep. 702. PeopIe o. Lewis, Supreme Court of Michigan, June 5, 1891, 49 N. W. Rep. 140 Phillips u. City of Denver, Supreme Court of Colorado, November 2%,1893,34 Pac. Rep. 902 People ex rel. Corn Hill Realty Co. u. Stroebel. N. Y. Court of Appeals, November 18, 1918, 103 N. E. Rep. 735, 209 N. Y. 434 City of Spokane u. Camp, Supreme Court of Washington. October 15, 1908, 97 Pac. Rep. 770 335 People ex re]. Kemp u. D’Oench, 111 N. Y. 359 Tenement House Dept. v. Moeschen, 179 N. Y. Welch u. Swasey, 193 Mass. 864. Affirmed: 214 U. S. 91Gundling u, Chicago, 177 U. S. 183.198 Cochran o. Preston, 108 Md. e20, 28 L. R. A. Ex Parte Quong Wo, 161 Cal. 20, 118 Pac. 714 In re Montaomew. 163 Cal. 457, Ann. Cas. 1914 (N. S.), 1163 A, 130,-125 P&. 1070 (1916), 95 (N. S.) 1030 Nahser 5. City of Chicago, 271 Ill. 288. L. R. A. People ex rel. Ormsby u. Bell, 218 N. Y. 212 Willion v. Cooke, 64 Colo. 3, 44 L. a. A. Spam IJ. City of Dallas, 189 S. W. 009 Bacon u. Walker, eo4 U. S. 311

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1920] ZONING 337 State 0. Taubert (1914), 126 Minn. 371. 148 N. W. 281 State u. Withnell (1912), 91 Neb. 101,135 N. W. 376,40 L. R. A. (N. S.) 898 Horton u. Old Colony Bill Posting Co. (1914). 36 R. I. 507 In the Matter d the Application of Richard Russell, New York Supreme Court, Niagara Co., April 6, 1916 Quintini v. City of Bay St. Louis, 64 Miss. 483, 1 South 635,60 Am. Rep. 62 State o. Gurry, Court of Appeals of Maryland, October 7, 1913, 121 Md. 534, 88 Atl. 546, 47 L. R. A. (N. S.) 1087, Ann. Cas. 1915 B, 957 Stubbs v. Scott, 127 Maryland 86 Bostock v. Sams. 96 Md. 400 Shepard v. City of Seattle, July 16,1910, Supreme Ex parte Hadacheck, 165 Cal. 416, L. R. A, Hadacheck v. Sebastian, 939 U. S. 394 State ex rei. Lachtman v. Houghton, 158 H. W. Rep. 1017. A valuable discussion of this and other cases by R. S. Wiggin in Minnesota Law Review, February, 1917. Lake Shore and Mich. So. Ry. Co. o. Ohio, 173 U. S. 285 Noble State Bank P. Haskell. 31 Sup. Ct. 186 Bonnett u. Vallier, 116 N. W. Rep. 885 Calvo 0. City of New Orleans, 67 S. W. Rep. 398 GRANT OF THE POLICE POWER BY THE LEOISLACity of Olympia u. Mann, 1 Wash. 389 Mount Vernon First National Bank o. Sarlls, 129 Ind. 201, 1s L. R. A. 481 Commonwealth v. Roberts, 155 Mass. 281 Health Department v. Rector, etc., 145 N. Y. 32 Attorney-General o. Williams, 174 Mass. 476 Court of Washington, 109 Pac. Rep. 1067 1916 B 1248 (Va.1 TURE TO THE CITY (Copley Square, Boston) People ex rel. Friend u. Chicago, 261 Ill. 16 Eubanli u. City of Richmond, 226 U. S. 157 State u. Johnson, 114 N. C. 846 EMINENT DObAIN NOT APPLICABLE TO ZONINQ Sanitary District of Chicago u. Chicago and A. R. Co.. Supreme Court of Ill., February 17, 1915,108 N. E. Rep. 313 Forster u. Scott, 136 N. Y. 577 Matter of opening Furman Street, 17 Wend. (N. Y.), 649 Matter of opening Rogers Avenue, 29 Abb. N. C. (N. Y.), 361 Edwards v. Bruorton, 184 Mass., 529 Curran P. Guilfoyle, 58 App. Div. 83 (N. Y.) Matter of Clinton Ave., 57 App. Div. 167 People ex rel. Dilzer P. Calder, 89 (N. Y.) App. St. Louis (I Hill. 116 Mo. 537 (1893) Fruth et al. u. Board of Affairs of City of Charleston, Supreme Court of Appeals of West Virginia, 84 S. E. Rep. 105 (N. Y.) 160 App. Div. 31 (N. Y.) Div. 503 AESTEETICS ALONE NOT A PROPER BASIS FOB EMPLOYMENT OF TEE POLICE POWER People w. Wineburg Adv. Co., 195 N. Y. 126 People ex rel. Publicity Leasing Co. P. Ludwig. People u. Green, 85 (N. Y.) App. Div. 400 Haller Sign Works u. Physical Culture Training School, 249 Ill., 436,34 L. R. A. (N. S.) 998 Passaic u. Paterson Bill Posting, Advertising & Sign Painting Company, 72 N. J. L. 285 11905) 218 N. Y. 540 Vamiy u. Williams, Supreme Court of CaIiiornia. March 18,1909,100 Pac. Rep. 867 Gunning Advertising Co. u. City of St. Louis, 235 Mo. 99. 157 S. W. 939 City of St. Lo& w. Dorr. 145 Mo. 466. 43 Lawton v. Steel, 154 U. S. 133. 14 Sup. Ct. 499. L. R. A. 686 38 L. Ed. 385 State ex rel. Omaha Gas Co. u. Withnell. SuDreme Court of Nebraska, January 5, 190i. 110 N. W. Rep. 680 Parker o. Commonwealth, 178 Mass. 199 PROCEDURE UNDER ZONINO ORDINANCE^ Whitridge o. Park, N. Y. Law Journal, February 19, i917 Anderson u. Steinway, N. Y. Law Journal, January 23, 1917; N. Y. Law Journal, June 19. 1917 , Albany Heights Realty Co. u. Vogt, N. Y. Law PeoDle ex rel. Beinert u. Miller. 165 N. Y. SUDD. Journal, July 19. 1919 -* 609: 188 A. D. 113 People ex rel. Cotton u. Leo. N. Y. Law Journal, PeoDle ex rel. Flegenheimer u. Leo. N. Y. Law February 97, 1920 -Journal, May-8, 1918 People ex rel. Sondern 0. Walsh. N. Y. Law JourPeople ex rel. N. Y. Central R. R. 8. Leo, N. Y. West Side Mortgage Co. u. Leo, N. Y. Law Jourwhitridge u. Calestock. 165 N. Y. Supp. 640 nal, July 25,1919 Law Journal, December 19. 1918 nal, February 20, 1919 IX. STATUTES AND ORDINANCES Statute8 Iowa, 1917, chapter 138 Illinois, June 28, 1919 Massachusetts, 1898, chapter 452 Massachusetts, 1904, chapter 333 Minnesota, 1915, chapter 128 New Jersey, 1918, chapter 146 NewYork, charter of city of NewYork, Sections 242a-949b; 718-719 New York, 1917, chapter 483 New York, charter of Rochester, Laws 1917, chapter 505

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338 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May Ohio, February 13,1920 Pennsylvania, May 11,1915 U. S. Congress for Washington, March Wisconsin, 1913, chapters 457 and 743 Ordinances Alameda, Calif., 1919, ordinance No, Berkeley, Calif., 1919, reported May City of New York, zoning ordinance, Minneapolis, Minn., ordinance, FebNewark, N. J., zoning ordinance 1919 Niagara Falls, N. Y., zoning ordinance Oakland, Calif., ordinance No. 806, Portland, Ore., zoning ordinance 1920 Sacramento, Calif., ordinance No. 290, St. Louis, Mo., zoning ordinance, May, 1, 1920 144, new series 6, 1919 July 25, 1916 ruary 28, 1913 1920 N. S. 3rd series 1918 X. THE BIBLIOGRAPHY OF ZONING BY THEODORA KIMBALL' Within the last eight years in this country there have appeared a considerable number of publications relating to zoning. The earliest of these dealt largely with European practice as a suggestion or guide for proposals in the United States. As our cities drafted their own zoning ordinances, and succeeded in getting them adopted, a steady and increasing stream of reports and descriptive articles has come forth, valuable to other cities as a record of experience. In addition, members of the American City Planning Institute,-especially Messrs. Bassett, Cheney, Swan, Whitten and Williams,-have summarized the legal situation in several authoritative pa'Librarian, School of Landscape Architecture at Harvard University; Honorary Librarian, American City Planning Institute. pers, particularly useful for reference. A selection from all the above-mentioned groups of publications is given below, together with a few other articles, one of which shows the awakening interest of Australia in the subject, and the remainder, certain basic facts which must be taken into consideration in making zoning plans. No items in the German language have been included, since German practice has been ably outlined in several of the articles given. A complete bibliography of American references on zoning would include a number of additional titles, but they are either progress items later superseded, or publications, without explanatory text, of ordinances, a complete account of which will be found by consulting the list of cities where zoning has been adopted, given elsewhere in this chapter. This bibliography has been checked by Mr. Bassett with the files of the Zoning Committee, and covers all important publications received both at Harvard School of Landscape Architecture and the Zoning Committee's office up to March 25, 1920. Selected References on Zoning In Books, Reports, and Pamphlets AUSTRALIAN TOWN PLANNING CONFERENCE AND EXHIBITION. Proceedings, ed, 1918, p. 163176: Districting or zoning of cities and towns, by Henry F. Halloran. illus. [General paper to urge problem upon Australia.] BASSETT, EDWARD M. Constitutional limitations on city planning powers. City of New York, Board of Estimate and Apportionment, Committee on city Plan, 1917. lop. [Contains full citations of decided cases on zoning.] BERKELEY, CALIF. CITY PLANKING COMMISSION. Proposed comprehensive zone ordinance for the City of Berkeley, California, as introduced before the City Council, May 6, 1919, Outline and explanation of proposed ordinance. 45p. BOSTON, MASS. COMMISSION ON HEIGET OF BUILDINGS. Report, November %, 1916. Elp. illus. (Document 114-1916) CHENEY, CHARLES HENRY. Procedure for zoning or districting of cities. San Francisco,

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19201 ZONING California Conference on City Planning, Sept. 1917. 15p. plans. (Bulletin No. 3) CHICAGO. CITY COUNCIL. Building districts and restrictions. A bill for an Act granting to cities and villages in the state of Illinois power to create residential, business and industrial building districts or zones. Recommended by the city council of the city of Chicago to the general assembly of the state of Illinois for enactment into law; and a statement of the desirability of giving the city of Chicago power to create building districts, presented to the committee on judiciary of the city council of the city of Chicago, by Alderman Charles E. Merriam. Feb. 1917. 56p. CHICAGO, ILL. Citizens’ Zone Plan Conference, Report of Proceedings. Dec. 16, 1919. 94p. (Secure from D. L. Goodwillie, Union League Club, Chicago.) CIVIC CLW OF ALLEGHENY COUNTY. MUNICIPAL PLANNINQ COMMITTEE. Districting and zoning; what it is; why Pittsburgh should do it. Jan. 1, 1918. 7p. illus. plans. (Second Special Bulletin) DAVIS, EARL H., compiler. Zoning. [A compilation showing the advance of the movement in the United States.] St. Louis, July 1917. [38p.] plans. (St. Louis Public Library Monthly Bulletin. n. s. v. 15, no. 7) DETROIT, MICE. CITY PLAN COMMISSION. A building zone plan for Detroit. Nov. 1919. 18p. illus. T. Glenn PhilIips and Harland Bartholomew, consultants. FORD, GEORGE B. Building zones; a handbook of restrictions on the height, area and use of buildings, with especial reference to New York City. New York, Lawem Mortgage Co. 11917.1 S6D.+Dhs. illus. lContins digest‘ of &a’: Constitutionality of the zone plan, by H. S. Swan.] HURD, RICHARD M. Principles of city land values. New York, The Record and Guide, 1908. p. 56-88: Directions of growthDistribution of utilities. illus. plans. [Important facts to be taken into account in zoning plans.] LEWIS, NELSON P. The planning of the modern cky. New York, Wilev and Sons. 1916. .260-386: Restrictions. illus. . plan. PRelat es largely to building height regulation and districting.] MCBAUT, HOWARD LEE. American city progress and the law. New York. Columbia University Press, 1918. p. 93-ie3: City planning, Building heights and zoning. MASSACHUSETTS. GENERAL COURT. Report relative to construction, alteration and maintenance of buildings, Feb. 1915, p. 4453. Div. 6: Building districts. (Secure from State Supt. of Documents, State House, Boston) MASSACHUSETTS. HOMESTEAD COMMISSION. Bulletin No. 6, June 1917, p. 3-31: [Districting] In Proceedings of Fourth Annual City and Town Planning Conference of Massachusetts Planning Boards. (Secure from Homestead Commission, State House, Boston.) 339 NATIONAL CONFERENCE ON CITY PUNNING). (60 State St., Boston.) Proceedings4th. 1913, p. 173-191: The control of municipal development by the “Zone system” and its application in the United States, by B. Antrim Haldeman. With discussion. Condensed in American City, Sept. 1913. 6th. 1914, p. 99-132: Protecting residential.districts, by Lawrence Veiller. With discussion. Also published separately by National Housing Association. -8th, 1916, p. 147-176: Districting by municipal regulation, by Lawrence Veiller. With discussion. -9th. 1917, p. 168-337, %89-%98: Districting and zoning of cities. Introductory remarks, by Henry D. Ashley.-Districting and zoning of cities, by Lawson Purdy .-Districting progress and procedure in California, by Charles Henry Cheney.-Building heights in Washington, D. C., by Richard B. Watrous.-Constitutional limitations on city planning powers, by Edward M. Bsssett. Also published separately by City of New Y ork. -loth, 1918, p. 34-71: The zoning of residence sections, by Robert H. Whitten.-Industrial zoning in practice, by Herbert S. Swan. With discussion. Mr. Swan’s paper has been condensed in American Architect, Apr. 3, 1919; American City, July 1018; Municipal Journal, Baltimore. June 31, 1918; Municipal Journal, New York. Sept. 14, 1918. NATIONAL CONFEXENCE ON HOWSING). (105 East 29d St., New York) Proceedings, 8d, 1915, p. 64-68. 143-157: Districted residential and industrial districts in German cities. by Frank Backus Williams. With discussion. Also in Journal of American Institute of Architects, Jan. 1914. NEW YORK (CITY). HEIGHTS OF BWILDIXGS COMMISSION. Report of the heights of buildings commission to the committee on the height, size and arrangement of buildings of the Board of Estimate and Apportionment of the City of New York. Dec. 23, 191% New York. 1913. 995p. illus. Edward M. Bassett, chairman, Lawson Purdy, vicechairman, George B. Ford and R. H. Whitten, consultants. [Appendices include: The German zone building regulations, by F. B. Williams.-Building restrictions in various cities, by H. S. Swan.] NEW YORK (CITY). Cemnssroiv ON BUILDING DISTRICTS AND RESTRICTIONS. Final report, June %. 1916. (Also Supplementary ed.. The City Club of New York.) City of New York, Board of Estimate and Apportionment, Committeeon the City Plan, 1916. 10Q1, illus. plans. Edward M. Bassett, chairman of the commission, Lawson Purdy, vice-chairman, George B. Ford and R. H. Whitten, consultants. Tentative report was issued March 10, 1916. [Explanatory articles on both reports, by George B. Ford, appeared in various periodicals in 1918. The final report is perhaps the most compre-

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340 NATIONAL MUNICIPAL REVIEW SUPPLEMENT [May hensive treatise on zoning now in print, referring to both American and European practice.] NEWARK, N. J. CITY PLAN COMMISSION. Encouraging proper city growth through building districts. Repfinted from a series of articles published m the Newark Sunday Call. beginning Feb. 4, 1917. (13p.) illus. plan. NEWARK. N. J. COMMISSION ON BUILDING DISTRICTS AND RESTRICTIONS. Proposed building zones for Newark; tentative report. Sept. 16, 1919. 44p. S folded maps inserted. Herbert s. Swan, consdtant. NOLEN, JOHN. Zoning problem of the city of Niagara Falls; an outline of regulations. Issued by Zoning Committee, Niagara Falls, N. Y. 1919. lop. Revised edition, May 1,1919. PORTLAND, ORE. CITY PLANNING COMMISSION. Zoning and city planning for Portland, Oregon. June 1919. 55p. illus. (Bulletin No. !). References on zoning and city planning, p. 55. Proposed building zones for the city of Portland, Oregon, as tentatively recommended by the Neighborhood Property Owners Meetings and the City Planning Commission, Oct. 25, 1919. 3ap. (Bulletin No. 4.) C. H. Cheney, consultant. [Report contains section: The legality of zoning, by Herbert S. Swan, p. 15-19.] ROBINSON, CHARLES MULFORD. City planning. New York, G. P. Putnam’s Sons, 1916. p. 277-288: The zoning or districting system. plan. ST. Lours. CITY Pm COMMISSION. Preliminary statement on districting; a reasonable exercise of the police power for health, eafety and general welfare. July 1916. 3p. -. Zoning for St. Louis; a fundamental part of the city plan, Jan. 1918. Sop. illus. Harland Bartholomew, consultant. -. Height, area and use districts and restrictions. May 1918. Folio of maps. -. The zone plan. June 1919. 82p. illus. plans. [Contains section of ‘‘expert testimony” giving arguments in favor of mning from hygienic, economic, etc., points of view.] Harland Bartholomew. consultant. Wmuxs. RUNIS BACKUS. Akron and its planning law. Akron (Ohio) Chamber of Commerce, 1919, p. 16-31: Building regulation and zoning. -. Building regulation by districtsthe lesson of Berlin. New York, Apr. 1914. 9p. maps. (National Housing Association Publications. No. e4.) -. The zoning or districting system in its relation to housing. Massachusetts Civic League (S Joy St., Boston) fl915.1 8P. -. In Petiodieok ALawciln AXCHITECT (P4S Weat 99th St.. New York). Nov. IS. 1918, vol. 114. p. 692-694. The non-conforming building in zoning, by Herbert S. Swan. , Dec. 25, 1918, vol. 114, p. 781-781, Zoning and reconstruction, by Herbert S. Swan. AMERICAN CITY (154 Nassau St., New York), Dec. 1913, vol. 9, p. 517-518. The street aa the basis of districting, by F. B. Williams. -, Apr. 1916, vol. 14, p. S28-333. illus. City planning by coercion or legislation, by George B. Ford. -, Aug. 1916, vol. 15, p. 183-184. The new Berkeley zone ordinance, by Charles H. Cheney. __., Oct. 1917, vol. 17, p. 357. Thenew California State Zoning Act, by Charles H. Cheney. ,July 1918, vol. 19, p. 3-6. illus. plan. Zoning as a war-time measure, by Charles H. Cheney. -, Aug. 1918, vol. 19, p. 1%’-130. illus. The St. Louis zoning ordinance, by Harland Bartholomew. Comprehensive zone ordinance adopted by Alameda, by Charles E. Hewes. [An up-todate ordinance typical of recent zoning on Pacific Coast.] -, Nov. 1919, vol. 21, p. 458-460. The legality of zoning regulations, by Herbert S. Swan. CITY PLAN (National Conference on City Planning) Dec. 1917, vol. S, no. 3, p. 1-15?. (Zoning or districting of cities; papers and discussions at 6rst meeting of American City Planning Institute held in New York City, Nov. 241 (publication out of print). HOUSING BETTERMENT (National Housing Association, New York), Feb. 1910, VOL 9, no. I. p. 53. A zoning tour lundertaken by Chicago citizens to review the experience of certain cities with a view to promoting the adoption of such a law in Chicago.] LANDSCAPE ARCHITECTURE (15 East 40th St., New York), Jan. 1917, vol. 7. p. 53-64. The Dusseldorf building ordinance, by Frank B. Williams. [From his work on city-planning ---, July 1919, VOI. 11, p. 1-S. illus. .law, in preparation.] MUNICIPAL JOUF~NAL (a43 West 39th St.. New York), Dec. 14, 1916, vol. 41, p. 73&740. Legality of zone ordinances, decisions by the courts of several states concerning the rights of cities to prohibit certain commercial uses of property in residential sections, by Walter F. Meier. -, Nov. 15, e2, 1919. vol. 47, p. 290-292, 310-%12. illus. Building zonesfor Newark, by H. S. Swan. NATIONAL MUNICXPAI, REVIEW (National Municipal League), May 1917, v. 7, p. 335-338. Building Zone Plan of New York City by R. H. Whitten. -.May 1918, vol.7,p.244-&54. Howmning works in New York. by Herbert S. Swan. -, May 1919, vol. 8. p. 25?6-!2!2!+. The nest problem in city eoning, by Francis P.

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195!0] ZONING 341 Sfoan. [Refers to already existing stores and factories in newly created residential zones.] -, Sept. 1919, vol. 8, p. 601-602. St. Louis zoning law under fire, by Luis F. Budenz. -, Jan. 1920, vol. 9, p. 31-43. Zoning in practice by Charles H. Cheney. Paper at 11th National Conference on City Planning, BufTdo, 1919. NATIONAL REAL ESTATE JOURNAL (1.99 North Clark St.. Chicago), Nov. 1919, vol. 20, No. 4, p. 21-114. illus. How zoning standardizes values, by Charles H. Cheney. -, Jan. 6, 1920, vol. 21, no. 1, p. 26-118. illus. Chicago zoning plan conference; a two-days’ drive to create popular interest and approval touches many phases of the subject. -, Mar. 1, 1920, vol. el. no. 6, p. 19-22. Zoning experiences in many cities. by Harland Bartholomew. RZXL ESTATE MAQAZINE, (Real Estate Board, 217 Broadway, New York), Feb. 1920. How the zoning law has worked the last three years and how it can be improved, by EdwardM. Bassett. [Refers to New YorkCity.] SPECIAL Lmzwtma (Special Libraries Association, 120 Peterborough St., Boston), Jan. 1916, vol. 7, p. 2-7. Bibliography on residential and industrial districts in cities, by H. A. Rider. SURVEY (112 East 19th St.. New York), Mar. 6. 1920, vol. 43, p. 675-880, 718. illus. Unwalled towns, by Bruno Lasker. [Tendencies towards social segregation to be guarded against in town planning and zoning.] TOWN PLANNING REVIEW (University of Liverpool, England), Oct. 1910, Jan. 1911, vol. 1. p. 236-246,503-311. plan. Central Liverpool; an attempt at an analysis of the geographical distribution of civic functions, by Ramsay Muir. Contents: O5ce Liverpoo1.-Shopping Liverpool.-Admiiistrarative and official Liverpool.-The zone of hospitality and amusement.-The educational zone. A significant study of city districts.