Jus Regium - the "Police Powers"
As will be recalled from the section on "franchise" in Part I, there was a differentiation between regulatory powers associated with a "public franchise" and private property. Public franchises were subject to the "publici juris," (public law,) and were burdened with public duties and responsibilities; while private property, (including commercial use,) was governed by "juris privati," subject to the "police" and eminent domain powers.
sic utere tuo ut alienum non laedas.
- each one must so use his own as not to injure his neighbor-
The fundamental doctrine regarding the use of private property stems from the concept of equality of individual rights embodied in ancient customary law, the notions of "trespass" and "nuisance," and the social compact. Each individual compacts with the others of his community to relinquish an equal portion of their alienable rights to the institution of government to better secure every one equally in his person (physical security/ health; peace/privacy,) as well as his property.
Under the ideology of the Founding Period regarding liberty, the degree of control over "alienable rights" relinquished in compact was to be limited only to that which was essential to its purpose, both for the community and the individual. As embodied in the 10th Amendment to the Constitution of the United States:
"The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the People."
The essence of private ownership is the exclusivity of individual control over use and disposal of property. Governmental regulation stands as an encroachment upon the exclusivity of that private control. In order to maintain the integrity of private ownership and the relativity of individual rights fundamental to the social compact, governmental regulation of property is restrained in its "police powers" to the protection of its citizens from property uses that are substantially dangerous or injurious to human peace, health, safety, and morals.
As stated in the case of Munn v. State of Illinois, 94 U.S. 113 (1876):
"The power of the State over the property of the citizen under the constitutional guaranty is well defined. The State may take his property for public uses, upon just compensation being made therefor. It may take a portion of his property by way of taxation for the support of the government. It may control the use and possession of his property, so far as may be necessary for the protection of the rights of others, and to secure to them the equal use and enjoyment of their property. The doctrine that each one must so use his own as not to injure his neighbor-sic utere tuo ut alienum non laedas-is the rule by which every member or society must possess and enjoy his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exercise of State authority. Except in cases where property may be destroyed to arrest a conflagration or the ravages of pestilence, or be taken under the pressure of an immediate and overwhelming necessity to prevent a public calamity, the power of the State over the property of the citizen does not extend beyond such limits."
..."It is true that the legislation which secures to all protection in their rights, and the equal use and enjoyment of their property, embraces an almost infinite variety of subjects. Whatever affects the peace, good order, morals, and health of the community, comes within its scope; and every one must use and enjoy his property subject to the restrictions which such legislation imposes. What is termed the police power of the State, which, from the language often used respecting it, one would suppose to be an undefined and irresponsible element in government, can only interfere with the conduct of individuals in their intercourse with each other, and in the use of their property, so far as may be required to secure these objects...."
In lieu of the power to absolutely forbid entire categories of potentially dangerous, injurious and noxious uses or "unwholesome occupations," government may regulate use by imposing rules or by "permitting" a particular use, subject to conditions that have a reasonable nexus in the reduction of risk of injury or danger associated with that use - (e.g. "regulate" use.)
