Conger v. Pierce County
In Conger v. Pierce County, 116 Wash. 27, 35-36, 198 P. 377 (1921), an early Washington case which determined a county had exceeded the scope of the police power, the Court said:
The police power has been defined as an inherent power in the state which permits it to prevent all things harmful to the comfort, welfare and safety of society. It is based on necessity.
It is exercised for the benefit of the public health, peace and welfare. Regulating and restricting the use of private property in the interest of the public is its chief business.
It is the basis of the idea that the private individual must suffer without other compensation than the benefit to be received by the general public.
It does not authorize the taking or damaging of private property in the sense used in the constitution with reference to taking such property for a public use. Eminent domain takes private property for a 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 the public use, but to conserve the safety, morals, health and general welfare of the public. Conger, 116 Wash. at 36.
In Conger Pierce County defended against an action to recover compensation for an alleged inverse condemnation, asserting that its actions were no more than a legitimate exercise of the police power for which no compensation would be due.
This caused us to compare and contrast the police power with the power of eminent domain:
Indeed, it is the police power theory upon which respondents seem most strongly to rely. It is probable that this power is the most exalted attribute of government, and, like the power of eminent domain, it existed before and independently of constitutions. . . . It is not inconsistent with nor antagonistic to the rules of law concerning the taking of private property for a public use.
Because of its elasticity and the inability to define or fix its exact limitations, there is sometimes a natural tendency on the part of the courts to stretch this power in order to bridge over otherwise difficult situations, and for like reasons it is a power most likely to be abused. . . . Eminent domain takes private property for a 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 the public use, but to conserve the safety, morals, health and general welfare of the public. . . .
". . . But the moment the legislature passes beyond mere regulation, and attempts to deprive the individual of his property, or of some substantial interest therein, under pretense of regulation, then the act becomes one of eminent domain, and is subject to the obligations and limitations which attend an exercise of that power." Conger, 116 Wash. at 35-37.