Police Power: Sovereignty's Sledgehammer; R. Foley, Jr.

2 Willis, Hugh Evander, Constitutional Law of the United States (The Principia Press, Bloomington, Indiana 1936) 224. Mr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon. come or property from residents or subjects for the support of the state and its undertakings. 3 Eminent domain m·arks the at tribute or power of a sovereign state to appropriate private prop erty to particular uses against the owners' consent in order to' pro mote public welfare (usually after application of procedural "due process" and the payment of "just" compensation, at least in the United States).4 Because the ordinary citizen en counters these two types of norm3 See Attorney General v. City of Eau Claire, 37 Wis 400, 438; Linnell v. State Dept. of Finance, 21 Cal Rptr 785, 788, 203 Cal App 2d 465 (1962) for other re alistic definitions. 4 For similar definitions, see J efJress v. Town of Greenville, 154 NC 490, 70 SE 919,921 (1911), Consumer's Gas Trust Co. v. Harless, 131 Ind 446, 450, 29 NE 1062 (1892); Briegel v. Briegel, 307 Pa 93, 160 A 581, 584 (1931).

677 678 THE FREEMAN November ative rules on a regular basis, in dividuals generally possess at least a vague comprehension of the exercise of government force in these ,arenas. Few, if any, per sons esc'ape entirely from the net of direct taxation flung like a blanket over the nation; April 15 serves as an annual reminder of this extensive power, as does the periodic withholding which siphons off portions of current income. While somewhat less widely used, the power of eminent domain touches most neighborhoods and inhabitants, at least indirectly, as urban renewal, land use restric tion, and right-of-way displace ments work their gentle magic on the countryside. Dissimilarly, the police power lurks pervasively in the back ground, quite as real. and more in tense than its companion powers, but less well recognized by the persons affected by its scope. Nev ertheless, the saturating nature and incredible fundamental depth and sway of the police power render it the most dangerous (if least well known) of governmental powers. Indeed, it forms the theo retical base for all regulatory re trictions on personal liberty. This essay proposes to isolate and ana lyze the concept of police power, hopefully pointing the way to a limitation upon the scope of state edicts.

Police Power Defined Unlike many essential postu lates difficult to articulate but relatively easy to define by ex ample, police pow'er poses quite the converse problem: it may be defined with relative ease and general agreement; only the ap plication remains difficult by vir tue of the open-textured nature of the tenet. Without applying the appellation "police pow'er," Chief Justice Roger Taney spoke of that aspect of sovereignty in Charles River Bridge v. Warren Bridge, when he upheld the power of the sta te of Massachusetts to erect a competing bridge across the Charles River to the detriment of a pre-existing charter: . . . But the object and end of all government is to promote the happi ness and prosperity of the community by which it is established; and it can never be assumed, that the govern ment intended to diminish its power of accomplishing the end for which it was created .... 5 In the following decade, the same jurist defined police powers in the Licensee Cases:6 ... But what are the police powers of a State? They are nothing more ,or less than the powers of government inherent in every sovereignty to the 5 11 Pet. 420, 12 U.S. 496,507 (1837).