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However, this does not mean that the courts defer

blindly to the legislature. "The greatest weight is given to the judgment of the legislature but it is always open to interested parties to contend that the legislature has gone

beyond its constitutional power." Pennsylvania Coal Co. v.

Mahon, 435. Ct. 159 (1922).

The expansion and sophistication of the concept of police

power is continuous.

Police power can be extended to regulate


area which, due to changed circumstances, might now infringe

on the public interest.

A reasonable business today may be

a menace tomorrow.

Dobbins v. Los Angeles, 25 s. Ct. 18

(1904). A Texas court has stated that an oil operator acquired no "vested right" in spacing rules which were in effect at the time his tract was segregated and the lease acquired. The

very nature of police power, from which the state derives its

right to regulate the production of oil and gas, subjects

such rules to change from time to time to permit fair and

equitable adjustment of the machinery of oil proration to meet changing conditions. Texas Trading v. Stanolind Oil & Gas Co., 161 S.W. 2d 1046-1047.

As these cases illustrate, the definition of police

power is not static; the scope of legitimate exercise of police power is therefore capable of expansion by movement in another direction such as mandatory storage of industrial petroleum reserves as part of the nation's emergency preçarecess.


Eminent Domain versus Police Power

It should be recognized that there are in fact limits placed upon the use of the police power by the Fifth Amendment. "As long recognized some property) values are enjoyed under

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an implied limitation and must yield to the police power.

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But obviously the implied limitation must have its limits or

the contract and due process clauses are gone."



Coal Co. v. Mahon, 43 S. Ct. 158, 159 (1922).

At such a

point, the state has crossed the thin line separating police power from eminent domain. The distinguishing characteristic between eminent domain and police power is that the former involves taking property because of its need for the public

use while the latter involves regulation of such property to

prevent the use thereof in a manner detrimental to the

public interest. Nicholls, Law of Eminent Domain, $1.42 (2) (30 Ed. 1950). "Eminent domain takes private property for public use while the police power regulates its use and

enjoyment, or if it takes or damages it, it is not a taking

or damaging for public use but to conserve the safety,

morals, health and general welfare of the public." City of

Los Angeles v. Aitken, 52 P. 2d 585, 590.

In Appeal of

White, 134 A. 409, 411, the court stressed another distinc

tion between the two.

"Police power controls use of property

by the owner for the public good, its use being otherwise

harmful; no payment being made for diminution in use even


though it amounts to an actual taking or destruction of property. Eminent doma in takes property for public use and gives compensation for property taken, injured or destroyed."

The intent of the IPR program is to establish reserves which will be returned to the contributors when the program expires in 1985: in the event of an emergency, the intent is still to return the petroleum to its owners unless some allocation program is in effect, in which case, they would be cor.peasated.

The IPR program does not envision the government taking and using the petroleum itself. It is not a taking for public use but a regulation of the petroleum industry

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mandating the establishment of reserves.


unrestricted use of the petroleum, without reserves as

protection in the event of an Arab boycott or other interruption

of petroleum imports, is not in the public's interest.

Establishment of the reserves is part of a program to protect

the national safety and welfare..

Actual physical appropriation need not occur to invoke the requirement of just compensation if the legislation in issue is so unreasonable or arbitrary as virtually to deprive a person of complete use and enjoyment of his property through destruction or severe impairment. See Welch v. Swasey, 214 U.S. 91 (1909), Pennsylvania Coal Co. v. Mahon, 43 S. Ct. 158 (1922), Goldblatt v. Hempstead, 369 U.S. 590

(1962). Property is taken in a constitutional sense whenever


such inroads are made upon the owner's use of it that, as between private parties, a servitude is acquired either by

agreement or in the course of time.

U.S. v. Dickinson, 331

U.S. 745, 748 (1947).

In United States v. Causby, 66 s. cł. 1062 (1946). military planes constantly flew so low over the plaintiff's

land that he was deprived of the use and enjoyment of his

land for purposes of raising chickens.

This constant intru

sion on the use of the land constituted a taking entitling him to compensation. Similarly, in United States v. Kansas City Life Ins. Co., 70 s. ct 885 (1950), the Court

held that construction of the dam which maintained the river constantly at high water mark, flooding the plaintiff's land entitled the plainti£f to compensation as a result of the "taking". In neither of these cases, did the government

attempt to show that these actions came within the police power. It might indeed be difficult to argue that flying low over a chicken farm served the public interest or protected

the health of the community.

Nonetheless, for this reason,

a distinction exists between these cases and the IPR program,

which is intended to protect the general safety and welfare.

To escape the requirements of compensation in the case of eminent domain, the IPR regulations must clearly demonstrate this distinction; that they serve a legitimate expression of police power, as public safety, general welfare, and development of resources. The purpose of the IPR statute


must be shown to be the regulation of industrial petroleum

so as to prohibit its being used in a manner detrimental to the public interest, so that it is clearly not a "taking"

for the public use.

Is it a Burden to be borne by Public as a whole?

The Fifth Amendment guarantee that private property should not be taken for a public use without just compensation was designed to prevent the government from forcing

some people alone to bear public burdens which, in all

fairness, should be borne by the public as a whole.


v. U.S. 364 U.S. 40, 48-49 (1960).

However, in another case the Court states that "lilt is

true that police power embraces regulations designed to

promote public conveience or the general welfare, and not merely those in the interest of public health, safety and morals.

But when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition msut bear some reasonable relation to the


evils to be eradicated or the advantages to be secure."

Nashville, C. & St. L. Ry. V. Walters, 294 U.S. 405, 429


In light of the language in these cases, implementation

of the IPR program should attempt to minimize the burdens to

be borne by the oil companies.

Consideration should be

given to the possibility of allowing the companies to pass

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