The San Francisco call., 1909-03-11
MAY
BE SOURCE OF
TROUBLE
Curtis H. Lindley Discusses
Possible Result of Adding
Clause to Domain
Law


Long: My attention has been called
to assembly bill No. 1852. introduced
by Mr.. Beatty. now under considera-
ton by the house, to which an amend
ment in committee has been suggested
and is now being discussed. The bill,
amend subdivision of section 1910 of
the code of civil procedure. so that the
subdivision will read as follows:
4. Property appropriated to public use; but
such property shall not be taken Unless for
more necessary public use than that to which
it has been already appropriated; provided that
property owned by any person, firm private
corporation may be taken by a municipal or
other public corporation for the purpose of
supplying water to such public corporation
the Inhabitants thereof, and such use by any
public corporation shall be held to be a
necessary than by any person, firm private
corporation.
There can be no rational objection
form
But as I understand 1t, there is a
proposal submitted to the committee
to add to the subdivision the further
clause as follows:
Provided that the question as to the neces-
sity for the taking of the particular property
shall be submitted to the court or jrry and
shall not be precludsd by this section.
The exact purpose of the proposed
amendment is not obvious.
When the use is public the necessity
or expediency of appropriating any
particular property is lnot subject to
judicial cognizance. The question is
political and administrative in its ma
ture. and not judicial. Where mu-
nicipality is authorized by the higher
legislative power to condemn prop
erty for specific public use. such as
securing water supply for its inhab-
itants, the declaration OF the municipal
body, acting through It's legislative
body under its charter, that it is neces-
sary to acquire a given public utility,
lie use. can not, at least in the abb
sence of some specific statute, be re-
viewed in the courts. The committee
amendment might be construed to
mean that court or jury could re-
view the political or administrative
function and pass judgment upon the
wisdom of the legislative action au-
thorizing the condemnation. In this
aspect the amendment is open to the
severest possible criticism.
y
contains a declaration that the acqui-
sition by the municipal authorities by
condemnation is a higher use, and in
the next breath it makes the court or
jury the Judge as to whether there
should be any condemnation at all.
If a municipality having the power
under its charter to do so provided by
ordinance for the widening of street,
would it be proper for jury to re-
view the political and administrative
action of the municipality and pass
upon the necessity of the widening?
The general rule is that when au-
thority to take property for public
use has been conferred by the legisla-
ture. it rests with the grantee to de-
termine whether it shall be exercised
and when and to what extent it shall
be exercised, provided, OF course, that
the power is not exceeded or abused"
Where condemnation is sought Of a
particular piece of property for the
purpose of devoting it to an avowed
public use. a judicial inquiry may be
had as to whether that particular
property is reasonably necessary for
that particular use, and the courts
would protect parties from wanton or
vicious condemnation of useless prop
erty. This is altogether a different
question from the necessity for the
acquisition of a public utility. For
example: II the city were to seek to
condemn lands to be submerged for a
reservoir site. the inquiry might be
made by the jury as to whether the
lands were reasonably necessary for
that purpose. But the inquiry ought
not to extend beyond that, or make
the court or jury the arbiter as to
whether it was necessary for the city
" dSQu1AO llAC lCSCt NO4L cilC al tll.
I am clearly of the opinion that the
proposed committee amendment will.
if adopted, prove a sourse Of serious
embarrassment. 1t at least imports
into the section an ambiguity, which
will cause trouble. I understand that
the assertion has been made that the
committee amendment~is but a state
ment of the law as presently ex-
pounded by the courts. If so, there is
no need of amendment. With due def
erence to the opinion of the gentlemen
who are sponsors for the statement. /
respectfully suggest that there is a
confusion of thought. or the admend-
ment is susceptible of a broader inter-
probation than they take into contem-
plation-
1 trust the committee will see its
way clear TO report the measure with
out the amendment. Sincerely yours.
CURTIS H. LINDLEY,
Special Counsel.
San Francisco, March 10. 1909.
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