369 U.S. 590
No. 78.
Argued Jan. 15, 16, 1962.
Decided May 14, 1962.
590 Milton I. Newman,
New York City, for the appellants.
William
C. Mattison, Brooklyn, N.Y., for the appellee.
Mr.
Justice CLARK delivered the opinion of the Court.
The
Town of Hempstead has enacted an ordinance regulating dredging
and pit excavating on property within its limits.
Appellants, who engaged in such operations
591
prior to the enactment of the ordinance,
claim that it in effect prevents them from continuing their
business and therefore takes their property without due process
of law in violation of the Fourteenth Amendment. The trial
court held that the ordinance was a valid exercise of the
town's police power, 19 Misc.2d 176, 186 N.Y.S.2d 577, and
the Appellate Division affirmed, 9 A.D.2d 941, 196 N.Y.S.2d
573. The New York Court of Appeals in a divided opinion affirmed.
9 N.Y.2d 101, 211 N.Y.S.2d 185, 172 N.E.2d 562.
We noted probable jurisdiction, 366 U.S. 942, 81 S.Ct.
1673, 6 L.Ed.2d 854, and having heard argument we now affirm
the judgment.
Appellant
Goldblatt owns a 38-acre tract within the Town of Hempstead.
At the time of the present litigation appellant Builders
Sand and Gravel Corporation was mining sand and gravel on
this lot, a use to which the lot had been put continuously
since 1927. Before
the end of the first year the excavation had reached the water
table leaving a waterfilled crater which has been widened
and deepened to the point that it is now a 20-acre lake with
an average depth of 25 feet.
The town has expanded around this excavation, and today
within a radius of 3,500 feet there are more than 2,200 homes
and four public schools with a combined enrollment of 4,500
pupils.
The
present action is but one of a series of steps undertaken
by the town in an effort to regulate mining excavations within
its limits. A
1945 ordinance, No. 16, provided that such pits must be enclosed
by a wire fence and comply with certain berm and slope requirements. Although appellants complied with
this ordinance, the town sought an injunction against further
excavation as being violative of a zoning ordinance.
This failed because appellants were found to be 'conducting
a prior non-conforming use on the premises * * *.' 135 N.Y.L.J.,
issue 52, p. 12 (1956).
The town did not appeal.
592
In 1958 the town amended Ordinance No.
16 to prohibit any excavating below the water table [FN1]
and to impose an affirmative
duty to refill any excavation presently below that level.
The new amendment also made the berm, slope, and fence
requirements more onerous.
FN1.
Specifically the ordinance provides that '(n)o excavation
shall be made below two feet above the maximum ground water
level at the site.'
In
1959 the town brought the present action to enjoin further
mining by the appellants on the grounds that they had not
complied with the ordinance, as amended, nor acquired a mining
permit as required by it. [FN2] Appellants contended, inter alia,
that the ordinance was unconstitutional because (1) it was
not regulatory of their business but completely prohibitor
and confiscated their property without compensation, (2) it
deprived them of the benefit of the favorable judgment arising
from the previous zoning litigation, and (3) it constituted
ex post facto legislation. However, the trial court did not
agree, and the appellants were enjoined from conducting further
operations on the lot until they had obtained a permit and
had complied with the new provisions of Ordinance No. 16.
FN2.
Under the ordinance the town may deny a permit if the proposed
excavation will violate any of the provisions of the ordinance.
Concededly the ordinance completely
prohibits a beneficial use to which the property has previously
been devoted. However,
such a characterization does not tell us whether or not the
ordinance is unconstitutional.
It is an oft-repeated truism that every regulation
necessarily speaks as a prohibition.
If this ordinance is otherwise a valid exercise of
the town's police powers, the fact that it deprives the property
of its most beneficial use does not render it unconstitutional.
Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct.
118, 65 L.Ed. 276 (1920); Hadacheck v. Sebastian, 239 U.S.
[593] 394, 36 S.Ct. 143, 60 L.Ed.
348 (1915); Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct.
511, 59 L.Ed. 900 (1915); Mugler v. Kansas, 123 U.S. 623,
8 S.Ct. 273, 31 L.Ed. 205 (1887); see Laurel Hill Cemetery
v. San Francisco, 216 U.S. 358, 30 S.Ct. 301, 54 L.Ed. 515
(1910). As pointed
out in Mugler v. Kansas, supra, 123 U.S. at 668-669, 8 S.Ct.
at 301:
'(T)he
present case must be governed by principles that do not involve
the power of eminent domain, in the exercise of which property
may not be taken for public use without compensation.
A prohibition simply upon the use of property for purposes
that are declared, by valid legislation, to be injurious to
the health, morals, or safety of the community, cannot, in
any just sense, be deemed a taking or an appropriation of
property for the public benefit.
Such legislation does not disturb the owner in the
control or use of his property for lawful purposes, nor restrict
his right to dispose of it, but is only a declaration by the
state that its use by any one, for certain forbidden purposes,
is prejudicial to the public interests. * * * The power which
the states have of prohibiting such use by individuals of
their property, as will be prejudicial to the health, the
morals, or the safety of the public, is not, and, consistently
with the existence and safety of organized society, cannot
be, burdened with the condition that the state must compensate
such individual owners for pecuniary losses they may sustain,
by reason of their not being permitted, by a noxious use of
their property, to inflict injury upon the community.'
Nor is it
of controlling significance that the 'use' prohibited here
is of the soil itself as opposed to a 'use' upon the soil,
cf. United States v. Central Eureka Mining Co., 357 U.S. 155,
78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958), or that the use prohibited
is arguably not a common-law nuisance, e.g., Reinman v. Little
Rock, supra.
594
This is not to say, however,
that governmental action in the form of regulation cannot
be so onerous as to constitute a taking which constitutionally
requires compensation. Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); see United States
v. Central Eureka Mining Co., supra.
There is no set formula to determine where regulation
ends and taking begins.
Although a comparison of values before and after is
relevant, see Pennsylvania Coal Co. v. Mahon, supra, it is
by no means conclusive, see Hadacheck v. Sebastian, supra,
where a diminution in value from $800,000 to $60,000 was upheld.
How far regulation may go before it becomes a taking
we need not now decide, for there is no evidence in the present
record which even remotely suggests that prohibition of further
mining will reduce the value of the lot in question. [FN3]
Indulging in the usual presumption of constitutionality, infra,
369 U.S., p. 596, 82 S.Ct., p. 991, we find no indication
that the prohibitory effect of Ordinance No. 16 is sufficient
to render it an unconstitutional taking if it is otherwise
a valid police regulation.
FN3.
There is a similar scarcity of evidence relative to the value
of the processing machinery in the event mining operations
were shut down.
The question, therefore, narrows
to whether the prohibition of further excavation below the
water table is a valid exercise of the town's police power.
The term 'police power' connotes the time-tested conceptional
limit of public encroachment upon private interests.
Except for the substitution of the familiar standard
of 'reasonableness,' this Court has generally refrained from
announcing any specific criteria.
The classic statement of the rule in Lawton v. Steele,
152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894),
is still valid today:
'To
justify the state in * * * interposing its authority in behalf
of the public, it must appear -- First, that
595 the interests of the public
* * * require such interference; and, second, that the means
are reasonably necessary for the accomplishment of the purpose,
and not unduly oppressive upon individuals.'
Even this
rule is not applied with strict precision, for this Court
has often said that 'debatable questions as to reasonableness
are not for the courts but for the Legislature * * *.' E.g.,
Sproles v. Binford, 286 U.S. 374, 388, 52 S.Ct. 581, 585,
76 L.Ed. 1167 (1932).
The ordinance
in question was passed as a safety measure, and the town is
attempting to uphold it on that basis.
To evaluate its reasonableness we therefore need to
know such things as the nature of the menace against which
it will protect, the availability and effectiveness of other
less drastic protective steps, and the loss which appellants
will suffer from the imposition of the ordinance.
A
careful examination of the record reveals a dearth of relevant
evidence on these points.
One fair inference arising from the evidence is that
since a few holes had been burrowed under the fence surrounding
the lake it might be attractive and dangerous to children.
But there was no indication whether the lake as it
stood was an actual danger to the public or whether deepening
the lake would increase the danger.
In terms of dollars or some other objective standard,
there was no showing how much, if any thing, the imposition
of the ordinance would cost the appellants.
In short, the evidence produced is clearly indecisive
on the reasonableness of prohibiting further excavation below
the water table.
Although one could imagine that
preventing further deepening of a pond already 25 feet deep
would have a de minimis effect on public safety, we cannot
say that such a conclusion is compelled by facts of which
we can take notice.
Even if we could draw such a
conclusion, 596 we would be
unable to say the ordinance is unreasonable; for all we know,
the ordinance may have a de minimis effect on appellants.
Our past cases leave no doubt that appellants had the
burden on 'reasonableness.'
E.g., Bibb v. Navajo Freight Lines, 359 U.S. 520, 529,
79 S.Ct. 962, 967, 3 L.Ed.2d 1003 (1959) (exercise of police
power is presumed to be constitutionally valid); Salsburg
v. Maryland, 346 U.S. 545, 553, 74 S.Ct. 280, 284, 98 L.Ed.
281 (1954) (the presumption of reasonableness is with the
State); United States v. Carolene Products Co., 304 U.S. 144,
154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938) (exercise of
police power will be upheld if any state of facts either known
or which could be reasonably assumed affords support for it).
This burden not having been met, the prohibition of
excavation on the 20-acre-lake tract must stand as a valid
police regulation.
We now turn our attention to
the remainder of the lot, the 18 acres surrounding the present
pit which have not yet been mined or excavated. Appellants
themselves contend that this area cannot be mined.
They say that this surface space is necessary for the
processing operations incident to mining and that no other
space is obtainable.
This was urged as an important factor in their contention
that upholding the depth limitation of the ordinance would
confiscate the entire mining utility of their property. However,
we have upheld the validity of the prohibition even on that
supposition. If
the depth limitation in relation to deepening the existing
pit is valid, it follows a fortiori that the limitation is
constitutionally permissible as applied to prevent the creation
of new pits. We
also note that even if appellants were able to obtain suitable
processing space the geology of the 18-acre tract would prevent
any excavation. The
water table, appellants admit, is too close to the ground
surface to permit commercial mining in the face of the depth
restrictions of the ordinance.
The impossibility of further mining
597 makes it unnecessary for us
to decide to what extent the berm and slope of such excavation
could be limited by the ordinance.
Appellants' other contentions
warrant only a passing word.
The claim that rights acquired in previous litigation
are being undermined is completely unfounded.
A successful defense to the imposition of one regulation
does not erect a constitutional barrier to all other regulation.
The first suit was brought to enforce a zoning ordinance,
while the present one is to enforce a safety ordinance.
In fact no relevant issues presented here were decided
in the first suit. [FN4]
We therefore do not need to consider to what extent
such issues would have come under the protective wing of due
process.
FN4.
Although it was adjudicated that at that time appellants had
made substantial improvements on the lot, this fact would
not be indicative of the loss appellants would presently suffer
if the mine were closed; perhaps the improvements are commercially
salable.
Appellants also contend that
the ordinance is unconstitutional because it imposes under
penalty of fine and imprisonment such affirmative duties as
refilling the existing excavation and the construction of
a new fence. This
claim is founded principally on the constitutional prohibitions
against bills of attainder and ex post facto legislation.
[FN5] These provisions
are severable, both in nature and by express declaration,
from the prohibition against further excavation.
Since enforcement of these provisions was not sought
in the present litigation, this Court under well-established
principles will not at this time undertake to decide their
constitutionality. E.g.,
Ohio Tax Cases, 232 U.S. 576, 594, 34 S.Ct.
372, 376, 58 L.Ed. 737 (1914); cf. United States v. Raines,
362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). That
598 determination must await another
day. We pass only on the provisions of the ordinance here
invoked, not on probabilities not now before us, and to that
extent the judgment is affirmed.
FN5.
The appellee asserts that these grounds were not properly
preserved below. Due to our disposition of these
arguments, it is unnecessary to reach this question.
Affirmed.
Mr.
Justice FRANKFURTER took no part in the decision of this case.
Mr. Justice
WHITE took no part in the consideration or decision of this
case.
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