has a lively prejudice against the city as a petitioner in eminent domain cases. The opinion is also generally held by those who have had experience in the presentation of evidence to a jury that the usual uncertainty in a jury's findings in any civil case is only increased by the technical nature of the evidence presented in condemnation cases. The jury is asked to estimate land values without having had any previous experience. It must depend entirely on its view of the premises and on the opinion of real estate experts for its decision. About all a fairminded jury can do in such cases beyond striking a mechanical average of the widely divergent expert testimony is to discount the several claims in proportion to the impression made upon the jury by the individual experts, and the jury is asked to measure the relative elasticity of conscience of experts after a too meager character study.

Where condemnation cases must continue to be tried before a jury, the important question in revising methods of procedure is whether there is any advantage in a preliminary hearing, either before a permanent board or before a board specially appointed for each case. From the data which we have just reviewed it is obvious that however excellent the preliminary tribunal, it results in increased cost and delay in those cases where its findings are not accepted by the land owners. But it is just as clear, first, that before a preliminary tribunal well constituted and acting under

favorable conditions, the procedure is simpler and less expensive; second, that appeals from its findings are few; and third, that not infrequently its awards are sustained on appeal. Thus the preliminary hearing at its best has the positive merit of being the means in a great majority of cases of a large saving in time and expense, and, even in cases that are appealed, of influencing the jury's verdict. In jurisdictions where preliminary boards are unsatisfactory, changes in method of appointment or in minor details should be tried before the principle of a preliminary hearing is condemned. If the tribunal has a political bias or is too closely affiliated with either of the parties to the proceeding, it should be replaced by a strictly non-partisan tribunal appointed by the court. A tribunal of permanent tenure is likely to handle cases with more dispatch, because of longer experience, than one appointed for each case. A properly paid tribunal is a surer guarantee of competent service than one paid an entirely inadequate sum or one induced to prolong its deliberations by a per diem compensation.

Whatever reason may justify the continuance of commissioners in eminent domain cases is not applicable to procedure in Philadelphia and other cities and towns of Pennsylvania and in Portland, Oregon. There seems to be no good reason for allowing damages to be ascertained in the first instance by a jury indifferently qualified to pass upon the evidence and then to have the same

evidence reviewed by a larger jury that is if anything less qualified to reach a fair verdict.

Even where it can be shown that awards of commissions of acknowledged excellence are generally appealed from and are increased by a jury on appeal, the reform that is needed is likely to be more fundamental than the abolition of the commission. A very large factor in determining the attitude both of the general tax payer and of the owner of land, and consequently in determining the number of appeals from a commission's findings and the advantage or disadvantage of the city's position before a common law jury, is the method of distributing the cost of an improvement. A summary of these methods in several jurisdictions should, therefore, indicate ways and means to reduce the initial investment of capital in the land required for an improvement, the problem which has just been considered, as well as the way of providing capital, which will be discussed in the next chapter.

CHAPTER III

THE DISTRIBUTION OF THE COST OF LAND ACQUIREMENT

C

ITIES may pay for improvements as they go along, appropriating the funds out of the general tax levy, or they may make special issues of bonds from time to time, and draw upon the general tax levy gradually for the interest charges and the redemption of the bonds. The income applicable to improvements derived from the tax levy, both directly and through the sale of bonds payable out of the tax levy, is likely to prove inadequate in almost any city in the United States, since a limit to the borrowing ability of a city is usually fixed in the state constitution at from 2 per cent to 10 per cent of its assessed valuation, and the amount available from taxation is just as effectively limited by the inelasticity of the tax rate above a certain figure. The most obvious way out of the financial difficulty is to remove the limitation on borrowing power, and there are precedents for this in nearly every progressive city. It is in fact the usual thing when comprehensive plans are proposed involving considerable financing, for the legislature to allow

a bond issue and provide that it shall not be reckoned in determining the amount of the municipal indebtedness.

DEVICES EQUIVALENT TO BORROWING OUTSIDE THE DEBT LIMIT

The city of Milwaukee employs a somewhat different expedient in stretching its borrowing ability. The constitution of the state of Wisconsin allows cities to incur indebtedness up to 5 per cent of their valuation,* provided that the bond issue is approved by the people at a special election. Counties are also given the right to become indebted up to 5 per cent of their valuation and no approval of the people is required. These provisions give Milwaukee the right practically to borrow money up to 10 per cent of its assessed valuation, since most of the county's valuation is included within the city's limits. Improvements are construed whenever possible to be county improvements in order to give the city a greater borrowing power and avoid the submission of the bond issue to the people.

But Milwaukee and other cities of Wisconsin have also worked out a method of purchase of land by contract, which amounts really to purchase on the instalment plan, as a further relief from the exigencies of the financial situation. The same practice is sanctioned by legislation in Minnesota and is employed at least in Minneapolis.

* Constitution of Wisconsin, Article XI, Section 3.