supra, 369 U.S., at 594, 82 S.Ct., at 990
Appellant Goldblatt owns a 38-acre tract within the Town of Hempstead on which mining operations have been conducted since 1927.1 By the time of the litigation, the excavation had created a 20-acre lake with an average depth of 25 feet.2 The surrounding area had developed significantly, with more than 2,200 homes and four public schools enrolling 4,500 pupils located within a 3,500-foot radius of the site.3
In 1945 the town enacted Ordinance No. 16, which required pits to be enclosed by a wire fence and to comply with specified berm and slope requirements.4 Appellants complied with this ordinance.5 When the town later sought an injunction against further excavation under a zoning ordinance, the court determined that appellants were conducting a prior non-conforming use.6
In 1958 the town amended Ordinance No. 16 to prohibit any excavating below the water table and to require refilling of any existing excavation below that level, while also making the berm, slope, and fence requirements more stringent.7 In 1959 the town initiated the present action to enjoin further mining on the grounds that appellants had not complied with the amended ordinance or obtained the required mining permit.8
The trial court upheld the ordinance and enjoined further operations until compliance. The Appellate Division affirmed the judgment. The New York Court of Appeals affirmed in a divided opinion. The Supreme Court noted probable jurisdiction and heard argument in the case.9
Whether the amended ordinance prohibiting excavation below the water table is a valid exercise of the town's police power?10
The term police power connotes the time-tested conceptional limit of public encroachment upon private interests.11 To justify the State in interposing its authority in behalf of the public, it must appear, first, that 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.12 Debatable questions as to reasonableness are not for the courts but for the legislature.13
Yes. The ordinance in question was passed as a safety measure, and the town is attempting to uphold it on that basis.14 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.15 A careful examination of the record reveals a dearth of relevant evidence on these points.16
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.17 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.18 In terms of dollars or some other objective standard, there was no showing how much, if anything, the imposition of the ordinance would cost the appellants.19 In short, the evidence produced is clearly indecisive on the reasonableness of prohibiting further excavation below the water table.20
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, we would be unable to say the ordinance is unreasonable; for all we know, the ordinance may have a de minimis effect on appellants.21 Our past cases leave no doubt that appellants had the burden on reasonableness.22 This burden not having been met, the prohibition of excavation on the 20-acre-lake tract must stand as a valid police regulation.23
The established facts confirm that appellant Goldblatt owns a 38-acre tract within the Town of Hempstead on which mining operations have been conducted since 1927. By the time of the litigation the excavation had created a 20-acre lake with an average depth of 25 feet. The surrounding area had developed significantly with more than 2,200 homes and four public schools enrolling 4,500 pupils located within a 3,500-foot radius of the site.
The amended ordinance prohibiting excavation below the water table is a valid exercise of the town's police power.24
Whether the ordinance effects a taking of property without just compensation in violation of the Fourteenth Amendment?25
There is no set formula to determine where regulation ends and taking begins.26 Although a comparison of values before and after is relevant, it is by no means conclusive.27 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.28 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.29
No. Concededly the ordinance completely prohibits a beneficial use to which the property has previously been devoted.30 However such a characterization does not tell us whether or not the ordinance is unconstitutional.31 It is an oft-repeated truism that every regulation necessarily speaks as a prohibition.32 Nor is it of controlling significance that the use prohibited here is of the soil itself as opposed to a use upon the soil.33
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.34 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.35 Indulging in the usual presumption of constitutionality 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.36 The established facts show that in 1958 the town amended Ordinance No. 16 to prohibit any excavating below the water table and to require refilling of any existing excavation below that level while also making the berm slope and fence requirements more stringent. In 1959 the town initiated the present action to enjoin further mining on the grounds that appellants had not complied with the amended ordinance or obtained the required mining permit.
The ordinance does not effect a taking of property without just compensation in violation of the Fourteenth Amendment.37
Whether the ordinance unconstitutionally undermines rights acquired by appellants in prior litigation?38
No. The claim that rights acquired in previous litigation are being undermined is completely unfounded.41 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.42
We therefore do not need to consider to what extent such issues would have come under the protective wing of due process.43 The established facts establish that in 1945 the town enacted Ordinance No. 16 which required pits to be enclosed by a wire fence and to comply with specified berm and slope requirements. Appellants complied with this ordinance. When the town later sought an injunction against further excavation under a zoning ordinance the court determined that appellants were conducting a prior non-conforming use.
The ordinance does not unconstitutionally undermine rights acquired by appellants in prior litigation.44
Whether the affirmative duties imposed by the ordinance violate the constitutional prohibitions against bills of attainder and ex post facto legislation?45
These provisions are severable both in nature and by express declaration from the prohibition against further excavation.46 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.47
No. 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.48 This claim is founded principally on the constitutional prohibitions against bills of attainder and ex post facto legislation.49 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.
That determination must await another day.50 We pass only on the provisions of the ordinance here invoked not on probabilities not now before us.51 The established facts show that the trial court upheld the ordinance and enjoined further operations until compliance. The Appellate Division affirmed the judgment. The New York Court of Appeals affirmed in a divided opinion.