Enlargement of Powers
Private property use may be prohibited or regulated to protect the public peace, health, safety and morals. Uses that are considered "malum in se" or "malum prohibitum" may be prohibited or require a license/permit, subject to regulation and supervision to eliminate or reduce the harm or danger they pose. Public franchises affecting common or "public" rights (jus publicum) are privileges that are also burdened with public responsibilities or duties. As such, in addition to the normal police powers, they may also be regulated for public convenience, increased public safety and comfort, community prosperity and other public interests. These ancillary regulatory powers of government pertaining to "public franchises" gradually began to become integrated with the limited "police powers" applicable to private property under such phrases as promotion of the "public/general welfare" and "general prosperity."
A series of (zoning) cases facilitated the blurring of the lines between the juris publici and jus publicum as regards private property. Although Court opinions regarding the legitimacy of regulation were generally anchored in the elemental "police powers," they began to reference ancillary justifications that crossed the boundaries into the jus publicum. Enumerated among justifications for various regulations were the "promotion" of majority economic interests; aesthetic tastes; administrative ease in delivering public services; and social policy as embodied in the "public interest."
This integration can be seen in the 1925 California Supreme Court decision in Miller v. Board of Public Works, 195 Cal.477, 485, 234 Pac. 381 where the court described the "police power" expanded from the original concept as follows:
"In its inception the police power was closely concerned with the preservation of the public peace, safety, morals and health without specific regard for 'the general welfare.' The increasing complexity of our civilization and institutions later gave rise to cases wherein the promotion of the public welfare was held by the courts to be a legitimate object for the exercise of the police power. As our civic life has developed so has the definition of the 'public welfare' until it has been held to embrace regulations 'to promote the economic welfare, public convenience and general prosperity of the community."
In the exercise of its police power, the State may prescribe regulations tending to promote the public health, safety, morals and welfare of the people, and may also legislate so as to increase the industries of the State, develop its resources and promote its welfare and prosperity, Graham v. Kingwell (1933) 218 Cal. 658, 24 Pac. 2d 488.
