“Property” and Police Power.

States have an inherent “po-lice power” to promote public safety, health, morals, public convenience, and general prosperity,50 but the extent of the power may vary based on the subject matter over which it is exercised.51 If a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.52 Thus, the means employed to effect its exercise may be neither arbitrary nor oppressive but must bear a real and substantial relation to an end that is public, specifically, the public health, safety, or morals, or some other aspect of the general welfare.53

An ulterior public advantage, however, may justify a comparatively insignificant taking of private property for what seems to be a private use.54 Mere “cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a state to exert its reserved power or its police power.”55 Moreover, it is elementary that enforcement of a law passed in the legitimate exertion of the police power is not a taking without due process of law, even if the cost is borne by the regulated.56 Initial compliance with a regulation that is valid when adopted, however, does not preclude later protest if that regulation subsequently becomes confiscatory in its operation.57

Footnotes

50
This power is not confined to the suppression of what is offensive, disorderly, or unsanitary. Long ago Chief Justice Marshall described the police power as “that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 202 (1824). See California Reduction Co. v. Sanitary Works, 199 U.S. 306, 318 (1905); Chicago B. & Q. Ry. v. Drainage Comm’rs, 200 U.S. 561, 592 (1906); Bacon v. Walker, 204 U.S. 311 (1907); Eubank v. City of Richmond, 226 U.S. 137 (1912); Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S. 52, 58–59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (police power encompasses preservation of historic landmarks; land-use restrictions may be enacted to enhance the quality of life by preserving the character and aesthetic features of city); City of New Orleans v. Dukes, 427 U.S. 297 (1976); Young v. American Mini Theatres, 427 U.S. 50 (1976). [Back to text]
51
Hudson Water Co. v. McCarter, 209 U.S. 349 (1908); Eubank v. Richmond, 226 U.S. 137, 142 (1912); Erie R.R. v. Williams, 233 U.S. 685, 699 (1914); Sligh v. Kirkwood, 237 U.S. 52, 58–59 (1915); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Panhandle Co. v. Highway Comm’n, 294 U.S. 613 (1935). “It is settled [however] that neither the ‘contract’ clause nor the ‘due process’ clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise.” Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 548 (1914). [Back to text]
52
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch v. Swasey, 214 U.S. 91, 107 (1909). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978); Agins v. City of Tiburon, 447 U.S. 255 (1980). See also analysis of “Regulatory Takings” under the Fifth Amendment. Although the Fourteenth Amendment does not contain a “takings” provisions such as is found in the Fifth Amendment, the Court has held that such provision has been incorporated. Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 159 (1980). [Back to text]
53
Liggett Co. v. Baldridge, 278 U.S. 105, 111–12 (1928); Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 197 (1936). [Back to text]
54
Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911) (bank may be required to contribute to fund to guarantee the deposits of contributing banks). [Back to text]
55
Erie R.R. v. Williams, 233 U.S. 685, 700 (1914). [Back to text]
56
New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930). [Back to text]
57
Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931). [Back to text]