Appendix — Miller v. Schoene

APPENDIX.

CEDAR RUST STATUTE,

CODE OF VIRGINIA, 1919.

Section 885. Red cedar trees ; declared public nuisance, when.—

It shall hereafter be unlawful within this State for any person,

firm or corporation to own, plant or keep alive and standing upon

his or its premises, any red cedar tree, or trees (which are or may

be) the source, harbor or host plant for the communicable plant

disease commonly known as “orange” or “cedar rust,” of the

apple, and any such cedar trees, when growing within a radius of

one mile of any apple orchard in this State, are hereby declared

a public nuisance and shall be destroyed as hereinafter provided,

and it shall be the duty of the owners of any such cedar trees to

destroy the same as soon as they are directed to do so by the State

entomologist, as hereinafter provided.

Section 886. In any county in this State where the above-

mentioned disease exists, or there is reason to believe it exists,

it shall be the duty of the State Entomologist, in person or by

an assistant, upon the request in writing of ten or more reputable

freeholders of any county or magisterial district, to make a pre-

liminary investigation of the locality from which said request is

received, to ascertain if any cedar tree or trees in said locality

are the source of or constitute the host plant for the said disease

known as “orange” or “cedar rust” of the apple, and constitute a

menace to the health of any apple orchard in said locality, and

that said cedar tree or trees exist within a radius of two miles of

an apple orchard in said locality. If upon such preliminary inves-

tigation of the localities from which said request is received it

shall appear that there are cedar trees which constitute the source,

harbor or host plant of said disease, and that said cedar tree or

trees exist within a radius of two miles of any apple orehard or

orchards in said locality and constitute a menace to the health to

said apple orchard or orchards, the State Entomologist or his

assistant, shall give notice in writing to the owner or owners of

34

said cedar tree or trees to destroy the same; such notice shall

contain a brief statement of the fact found to exist whereby it is

deemed necessary or proper to destroy said cedar trees and call

attention to the law under which it is proposed to destroy said

cedar trees, and the owner or owners shall within such time as may

be preseribed in such notice by the State Entomologist cut down

and destroy said cedar trees.

Section 887. If, however, in the judgment of the State Ento-

mologist it is practical to treat any such cedar tree or trees, espe-

cially ornamental trees in dooryards, graveyards, cemeteries and

parks, which have been declared as aforesaid to constitute a menace

to any apple orchard in said locality, in such a way as to render it

or them harmless, he may direct such treatment to be carried out

by the owner under the direction of any agent he may appoint for

that purpose. Said directions for treatment shall be put in writ-

ing by the State Entomologist and a copy placed in the hands of

said ownes. Any owner undertaking to so treat his trees and

refusing or failing to carry out said written directions shall be

guilty of a misdemeanor and upon conviction thereof shall be fined

not less than five dollars nor more than fifty dollars.

Section 888. The notice required under sections eight hundred

and eighty-six and eight hundred and eighty-nine may be served

upon the owner of said trees if a resident in the State in the man-

ner prescribed by section six thousand and forty-one, or if such

owner be not a resident of this State, by serving a copy of such

notice upon his tenant or other person having charge of the

premises.

Section 889. Whenever the owner or owners of said cedar tree

or trees refuse or neglect to cut down or destroy the same within

the time specified in the notice given by the State Entomologist

as prescribed by section eight hundred and eighty-six, it shall be

the duty of the State Entomologist to cause said trees to be at once

cut down or destroyed and the necessary expense thereof shall be

paid by his warrant on the county treasurer to be paid out of the

general funds of the county and to be reimbursed as provided in

section eight hundred and ninety-two.

,

On petition of ten or more reputable freeholders in any county

or magisterial district in which this law has been made operative

as provided in section eight hundred and ninety-three, the State

Entomologist may arrange for the removal of cedar sprouts on

land from which the cedars have already been removed, the

necessary expense thereof being paid by his warrant on the county

treasurer as provided above without the formality of serving a

legal notice on the owner of the land.

85

Section 890. The State Entomologist, his assistant or em-

ployees are empowered with authority to enter upon any public

or private premises for the purpose of carrying out the provisions

of this chapter. Any person or persons who shall obstruct or

hinder the said Entomologist, his assistants or employees in the

discharge of their duties under this chapter shall be deemed guilty

of a misdemeanor and upon conviction thereof shall be fined not

less than five dollars nor more than fifty dollars.

Section 891. Any owner finding objection to the order of the

State Entomologist in requiring him to destroy his cedar tree or

trees may appeal from said order to the circuit court of the couaty

in which said trees are located, but said appeal must be taken

within fifteen days from the date upon which the notice to destroy

the same is served upon him. Notice in writing of said appeal

must be filed with the clerk of said court who shall forthwith

transmit a copy thereof to the State Entomologist. The filing of

said notice shall act as a stay of the proceedings of the State

Entomologist until it is heard and decided. The court in regular

or special session shall thereupon hear the objections, and is here-

by authorized to pass upon all questions involved, and determine

the amount of damages, if any, which will be incurred by the

owner in case said cedar trees are destroyed, and the costs incurred

or to be incurred in cutting down trees under section eight hun-

dred and eighty-six. If the court should find any damages or

such expense sustained, he shall order the amount so ascertained

to be paid to the owner by the treasurer of the county out of the

general fund of said county, and such order shall be entered by

the clerk in the law order book of the said court.

—

36

Section 892. Whenever the court orders any damages paid out

of the general fund of the county under the preceding section, or

the county treasurer makes any payments out of the general fund

of the county under section eight hundred and eighty-nine, the

said county shall be reimbursed by a specific levy of not exceeding

one dollar and fifty cents per acre on all apple orchards planted

ten years or more, and not exceeding fifty cents per acre on all

orchards planted more than two years and less than ten years, in

each magisterial district in which this law shall have become

operative as hereinafter provided, but in the county of Shenan-

doah, the said county fund shall be reimbursed by a specific levy

of not exceeding three dollars per acre on all orchards planted ten

years or more, and not exceeding one dollar and fifty cents per

acre on all orchards planted more than two years or less than ten

years in each magisterial district in which this law shall become

operative as hereinafter provided, if a single levy does not provide

a sufficient fund to reimburse the county fund for the amounts

paid out, as aforesaid, the levy may be repeated from time to time

until the county fund is restored, but not more than one levy shall

be made in any one year in the same district. The court awarding

damages shall direct the commissioner of the revenue for the

district or districts in which the law has become operative, to

report at the next annual assessment the names of all owners of

apple orchards over two years old and less than ten years old, and

all owners of apple orchards over ten years old, in such district

or districts, together with the number of acres owned by each

person.

The court shall thereupon fix such specific amount per acre to

be paid by each owner as will in the aggregate net the amount

necessary to reimburse the county fund for all damages, and costs

previously paid out under the provisions thereof.

The court shall enter an order directing each owner to pay his

respective portion so ascertained to the county treasurer, and such

order shall have the force and effect of a judgment of the court;

if said amounts are not paid within thirty days from the date of

said order the county treasurer shall proceed to collect the same as

taxes are collected; provided, however, that all damages awarded

CACO es ROR REO NETO |

37

and assessments made therefor shall be by magisterial districts,

each district bearing its own expense in the enforcement of this

chapter; provided, further, that any orchard owner who is ag-

grieved by an erroneous levy or assessment made against him

under this section, may apply by motion for relief against the

same at the court that ordered the levy, at any time within twelve

months after the date of the order ascertaining the amount to be

paid by the several owners and directing payment; and if the

court is satisfied that the applicant is erroneously assessed in such

levy, either in whole or in part, it shall correct the same, directing

that the applicant be exonerated from so much as is erroneously

charged against him, if it is not already paid, and if paid that it

be refunded to him.

Such motion shall be after five days’ notice to the attorney for

the Commonwealth, who shall represent the county at the hearing.

The amount fixed by the court upon orchards planted more than

two and less than ten years shall be one-half the amount fixed

by the court as a charge upon orchards planted ten years or more.

Section 893. The eight preceding sections shal] not be in force

in any county or in any magisterial district of any county until

the board of supervisors thereof shall by a recorded vote accept

and adopt the same for their county or magisterial district in their

county, and such acceptance and adoption shall not make the same

operative unless the circuit court of such county by an order duly

entered shall ratify and approve the action of the board.

In the event the board of supervisors of any county neglect or

refuse to accept and adopt the same for their county, or for any

magisterial district of their county, then the majority of the

qualified voters of said county or any magisterial district of said

county, may request its adoption by petition addressed to the

circuit court of said county, and when it appears from said

petition that a majority of the qualified voters of said county or

any magisterial district of said county request the adoption of

said sections, then the said court shall declare the same adopted

for such county, or for any magisterial district in such county,

requesting their adoption.

38

An ACT to amend and re-enact section 885 of the Code of

Virginia. .

Approved March 16, 1920.

Acts, 1920, p. 370.

1. Be it enacted by the General Assembly of Virginia, That

section eight hundred and eighty-five of the Code of Virginia be

amended and re-enacted so as to read as follows:

See. 885. Red cedar trees; declared public nuisance, when.—

It shall hereafter be unlawful within this State for any person,

firm or corporation to own, plant or keep alive and standing upon

his or its premises, any red cedar tree, or trees (which are or may

be) the source, harbor or host plant for the communicable plant

disease commonly known as “orange” or “cedar rust,” of the

apple, and any such cedar trees, when growing within a radius of

two miles of any apple orchard in this State, are hereby declared

a public nuisance and shall be destroyed as hereinafter provided,

and it shall be the duty of the owner or owners of any such cedar

trees to destroy the same as soon as they are directed to do so by

the State Entomologist, as hereinafter provided.

INDEX

Statement of Facts ..........0..... REEL LEGS Eh ROT SAT Ter aon 1-7

Effect of State Supreme Court’s Interpretation of

ENA RIDE IS re ELSES SR oe 9-11

(a) Authorities Quoted—

American Railway Express So. v. Ken-

tucky ——U. S.—, 71 L. Ed. (Adv. 457)

Edward Hines Yellow Pine Trustees v.

Martin, ——U. S.—, 71 L. Ed. —— (Adv.

607)

North Laramie Land Co. v. Hoffman

268 U. S. 282, 69 L. Ed. 957

(b) Authorities Cited—

Fidelity Natl. Bank & T. Co. v. Swoope,

—U. S——, 71 L. Ed—— (Adv. 559)

Charles H. Graves vs. State of Minnesota,

——U. $.——, 71 L. Ed—— (Adv. 143, 145)

I

The Contention that the Statute is Invalid in that it

Provides for the Taking of Private Property not

for Public Use, but for the Benefit of Other Private

SRR a ARR SPE ai ae Sy RE NT? Cec ee ce os ll

Authorities :—

Bowman v. Entomologist, 128 Va. 351, 105 S.

E. 141, 12 A. L. R. 1121, Annotation.

Kelleher v. Schoene, 14 F. (2d) 247

Kelleher v. French, 22 F. )2d) 343

Balch v. Glenn, 43 L. R. A. (N. S.) 1080

Los Angeles v. Spencer, 77 Am. St. R. 217

State v. Main, 36 L. R. A. 623

Colville v. Fox, L. R. A. 1915 F. 894

Carstens v. DeSellem, 144 Pac. 934

Louisiana State Board v. Tanzmann, L. R. A.

1917 C 894

ll

The Contention that The Act Cannot be Sustained as a

Legitimate Exercise of the Police Power .............0......0... 11-26

Authorities :—-

12 A. L. R. 1136-1138

Kelleher v. Schoene,

14 F. (2d.) 348, 346

Lawton v. Steele, 162 U. S. 136, 38 L. Ed. 388

Bacon v. Walker,

204 U. S. 317, 51 L. Ed. 502

Buchanan v. Worley,

245 U. S. 74, 62 L. Ed. 74

Thomas Cusack vy. Chicago,

242 U. S. 530, 61 L. Ed. 475

Chicago B. & . R. Co. v. Illinois,

200 U. S. 592, 50 L. Ed. 609, 610

Bowman v. Entomologist, 128 Va. 360

Corpus Juris, Vol. 12, 904

R. C. L. Vol. 6, 189, 206

R. C. L., Vol. 1, 790

Lewis on Eminent Domain, 3d. Ed. Sec. 6

Am. St. R., Vol. 77, 221

Louisiana State Board v. Tanzmann,

L. R. A. 1917 C 894

Mugler v. Kansas, 123 U. S. 623

Noble State Bank v. Haskell,

219 U.S. 104, 55 L. Ed. 112

Arkansas v. Kansas & T. Coal Co.,

183 U. S. 189, 46 L. Ed. 146

Balch v. Glenn, 43 L. R. A. (N. S.) 1080

Los Angeles v. Spencer, 77 Am. St. R. 220

State v. Main, 61 Am. St. R. 30

Howard v. State (Ark.),

242 S. W. 818

Hamilton v. Kentucky Distillery Co.,

251 U. S. 156, 64 L. Ed. 199

Purity Extract Co. v. Lynch,

226 U. S. 192

Schmindingre v. Chicago,

226 U. S. 578, 57 L. Ed. 364

Colville v. Fox, L. R. A. (N. S.) 1915 F. 895

Wedenyer v. Crouch,

43 L. R. A. (N. S.) 1080

Noble State Bank v. Haskell,

2!9 U.S. 104, 55 L. Ed. 112

U. S. Const., Art. X

Il

Contention that the Control of Property of Plaintiffs-in-

Error is Exercised Under the Statute, by Other

Owners of Property SieviAtandecestetcs

Authorities :—

Kelleher v. French, 22 F. (2d.) 343

Kelleher v. Schoene, 14 F. (2d.) 347

Eubank v. Richmond, 226 U. S. 137, 57 L. Ed. 156

North Laramie Land Co. v. Hoffman, 268 U. S. 282, 69

69 L. Ed. 957

lV

Contention that The Statute is Void for oe and

Uncertainty .

Stipulation of ON SRT BREE

26-31

PeaPeremees OO Codie Bae, BFBD. ...ccesecenesieseeccssesssensersnosevevensse 28

Vv

Contention that Statute is Void by Reason of Alleged

Uncertainty of Meaning of Word “Locality”...... 33-34

Opinion of udge Burke (R. 165) ooo...ccceeeeees 33

Opinion of Judge McDowell Kelleher v Schoene (R. 165) 34

Vi

Contention that the Act is Unconstitutional Because of

Alleged Uncertainty in Meaning of Word

“Orchard” .... ve D435

Opinion of Judge Parker ts F. (2d.) 344) an ae

Vil

The Contention that Private Property is Taken Under

Police Power for Public Use Without

Compensation ss stabiiadpbahatioss iat cee 35-40

Authorities :—

Chicago &c. 7 R. Co. v. Illinois,

200 U. S. 592, 50 L. Ed. 609

Eubank v. Richmond,

226 U. S. 142, 57 L. Ed. 158

Amercan Railway Express Co. v. Kentucky

——U. $.——, 71 L. Ed. (Adv. 457)

Bowman v. Entomologist,

12 A. L. R. 1138, 1143

Balch v. Glenn, 43 L. R. A. 1080

Los Angeles v. Spencer, 77 Am. St. R. 217

State v. Main, 36 L. R. A. 623

Colville v. Fox, L. R. A. 1915 F 894

Carstens v. DeSellem, 144 Pac. 934

Los Angeles Berry Growers Co-Op Assn. v. Hunt-

ley, 146 Pac. 373

Louisiana State Board v. Tanzmann, L. R. A.

1917 C 894.

TABLE OF CASES CITED

Page

A. L. R. Vol. 12, p. 1121, (Anno.) 1136, 1138, 1143 11

American Railway Express Co. v. Kentucky, 71 L. Ed.

(Adv. 457) ...... hts 38

Am. St. R. Vol. 77, 22l ...... 7a = ie 22

Arkansas v. Kansas & Coal Co., 183 U. S. 189,

46 L. Ed. 146 ............ = — |

Bacon v. Walker, 204 U. S. 317, 51 L. Ed. 502 15

Balch v. Glenn, 43 L. R. A. (N. S.) 1080 ....... oe

oF

Bowman v. Entomologist, 12 A. L. R. 1121, 1143 . Il, 12, 26

Buchanan v. Worley, 245 U. S. 74, 62 L. Ed. 74 16

Carstens v. DeSellem, 144 Pac. 934, Constitution, Art. X 24

Charles H. Graves v. State of Minnesota, 71 L. Ed.

(Adv. 143, 145) ui EP a PEN FR

Chicago B. & Q R. Co. v. Illinois, 200 U. S. 592, 50

L. Ed. 609, 610 i ——

Colville v. Fox, L. R. A. 1915 F 894, 995 11, 25, 39

Corpus Juris, Vol. 12, 904 ......

Eubank v. Richmond, 276 U. S. 142, 137, 57 & Ed. 158, 156 29

Edward Hines Yellow Pine Trustees v. Martin 71 L. Ed.

(Adv. 607) ...... | 9

Fidelity National Bank & T. Co. v. Swoope, sano), Spas,

71 L. Ed. (Adv. 559) 9

Hamilton v. Kentucky Distillery Co., 251 UL. S. 156, 62

L. Ed. 199 25

Howard v. State (Ark.) 242 S W. 818 24

Kelleher v. Schoene, I4 F. (2d) 347 11, 12, 14, 29

Kelleher v. French, 22 F (2d.) 343, 344 11, 12, 28, 30, 35

Lawton v. Steele, 162 U. S. 136, 38 L. Ed. 388 15

Lewis Eminent Domain, 3d. Ed. Sec. 6 21

Los Angeles v. Spencer, 77 Am. St. R. 217, 220 1}, 23, 30

Louisiana State Bank v. Tanzmman, L. R. A. 1917 C

894 ' 11, 23, 39

Miller v. Entomologist, Opinion Judge Burks quoted,

Opinion Judge McDowell quoted 34

Mugler v. Kansas, 123 U. S. 623 22

Noble State Bank v. Haskell, 219 U. S. 104, 55 L. Ed. 112 25

North Laramie Land Co. v. Hoffman, 268 U. S. 282, 69

L. Ed. 957 : 30

Purity Extract Co. v. Lynch, 226 U. S. 192 25

R. C. L. Vol. 6, 189, 206 . 20

R. C. L. Vol. 1, 790 2]

Schmindingre v. Chicago, 226 U. S. 578, 57 L. Ed. 364 25

State v. Main, 36 L. R. A. 623, 61 Am. St. R. 30 11, 24, 39

Thomas Cusack Co. v. Chicago, 242 U. S. 530, 61 L. Ed. 47517

Wedemyer v. Crouch, 43 L. R. A. (N. S.) 1080

~—

No. 199

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1927

JULIA V. MILLER, &c.,

Plaintif{s-in-Error,

vs.

W. J. SCHOENE,

State Entomologist of Virginia

Defendant-in-Error.

BRIEF FOR DEFENDENT-IN-ERROR

STATEMENT OF FACTS

The original Cedar Rust Law was enacted in

1914, and was reenacted in the Code of 1919. In

1920, (Acts 1920, p. 370); in 1922, (Acts 1922, p

246), in 1924 (Acts 1924 p. 47), the Act was before

the Legislature and amended.

Under the Act, the petition was filed before

the State Entomologist by ten freeholders of the

magisterial district requesting the State Entomo-

logist to make a preliminary investigation to ascer-

tain if the lands in the territory sought to be in-

vestigated contained cedar trees constituting the

2

host plant of the disease known as Cedar Rust di-

sease, and whether the cedars if so found were a

menace to the apple orchards within the two mile

radius of the orchards. The State Entomologist

made his preliminary examination and ascertain-

ed that the plaintiffs-in-error did own red cedars

within said radius, and that the cedars were a men-

ace to the health of said apple orchards, and accord-

ingly as provided by the Act notified the plaintiffs-

in-error of his finding and directed plaintiffs-in-

error, as further provided by the Act, to cut down

the red cedars, and thus abate the nuisance. (R. 41,

43.

The plaintiffs-in-error exercised, as they were

entitled to do under the law, their right to take an

appeal from the decision of the State Entomologist

to the Circuit Court, (R 54), and there they pre-

sented their defenses, (R. 45), and the decision of

the said court being unsatisfactory to them, they

applied for a writ of error to the Supreme Court

of Appeals, from whose decision they applied for

a writ of czror to the Supreme Court of the United

States.

The cedar rust is a disease that first manifest-

ed itself viciously in the early years of this cen-

tury, (R. 48), and has increased in virulence, until

now successful apple production in proximity to

the red cedar has become an impossibility. (R. 73,

74, 76, 78, 88, 92, 100, 109.) The apple industry it is

shown will soon become extinct in the vicinity of

cedars, if the cedar rust disease cannot be put

and kept under control.

3

It has been demonstrated beyond successful

contradiction that the cedar rust is a disease, and

that its spores spend their existence, in part on

the cedar tree and in part on the apple tree, and

that it cannot exist in the absence of either the

cedar tree or apple tree. The life cycle of the spores

has been studied and definitely learned. (R. 49,

117.) The disease originally and until compara-

tively recent years lived alternately upon the wild

crab apple and the cedar tree and only recently

adapted itself also to the cultivated apple—at first

to a few varieties, and now no variety may be said

to be perfectly immune, while many varieties are

being for all practical purposes destroyed. (R. 100,

118, 119.)

The disease attacks both fruit and foliage of

the apple trees. (R. 48.) The foliage of some of the

best varieties such as York Imperial and Jonathan

is destroyed in mid summer and early fall; (R. 50)

the fruit fails to mature and is worthless except to

enlarge the unprofitable cull pile; (R. 73, 100), and

the trees deprived of their power to breathe

through their leaves, fail to continue their growth.

(R. 51.) The disease is a disease of both the apple

tree and the cedar tree. (R. 51.)

The Cedar Rust disease is carried by the at-

mosphere from the cedar galls (“cedar balls”) in

spring and early summer to the apple trees. (R.

119.) The zone of infection depends upon weather

conditions and the direction of the winds. Removal

of the cedar trees within a radius of two miles

has been so far found to afford reasonable protec-

4

tion against ordinary outbreaks of the infection,

though injury occurs during years favorable to

the disease well beyond this distance. (R. 50.) The

intensity of the disease depends upon distance

from source of infection.

The spores from the cedars pass their summer

existence on the apple and apple foliage and their

remaining existence upon the cedar, being carried

from one host plant to the other by favorable

atmosphere, so that a large body of red cedars may

have the capacity of deluging orchards with the

disease spores, to be carried on to other cedar trees,

and from the latter to still other apple orchards,

constituting a possible link in an endless and

destroying chain covering the area of the joint oc-

cupancy of land by the red cedar and the apple

tree. (R. 49.)

The orchard industry in the Valley of Vir-

ginia is very valuable and extensive. (R. 69, 92,

105,129.) In Frederick County, it has been describ-

ed as the largest agricultural industry (R. 68.)

Virginia whose apple producing territory is con-

fined largely to the Valley of Virginia, ranks 3rd

or 4th in production among the States of the Union.

(R. 116.) Near New Market, the southern end of

Shenandoah County, and within a few miles of

the Miller cedars are to be found some of the larg-

est orchards in the State. (R. 92, 126.) Within a

radius of 1 mile of the Miller cedars is one or-

chard of about 25 acres and 4 or 5 smaller orchards,

all of which are rendered worthless. Within a

radius of 2 miles there are other orchards, includ-

see

5

ing the Driver orchard of about 20 acres, and a

short distance beyond, numerous other orchards

very large in size. (R. 92, 125, 126, 182, 183.) The

lands in the New Market territory are especially

well adapted to apple growing. (R. 71, 92, 105, 106,

107.) Fe

Among the industries made necessary by the

large apple production in the Valley section may

be mentioned large cold storage houses—the city of

Winchester alone having two storage plants with

a combined capacity of a half million barrels and

the largest apple canning and apple by-product

plant in the World. (R. 69.) Railroads are neces-

sarily kept busy in apple seasons, and a very large

number of men and their families are given em-

ployment in the production, harvesting and mar-

keting of the fruit, and in the allied industries. (R.

64, 93.)

The food value of the quantities of fruit con-

sumed at home, and placed upon the markets, do-

mestic and foreign, is very great, and practically

beyond computation.

The value of farm lands for all practical pur-

poses is increased by the removal of the cedars, the

harbor and source of the infection (R. 66, 67, 71,

84, 87, 93, 101, 107, 123, 124), and the territory be-

comes more attractive and valuable for those liv-

ing there, while the county and state treasuries are

gathering increasing revenues from the increased

production and enhanced land values. (R. 72, 78,

79, 81.)

6

The cedar trees are indigenous to the Valley

lands. Their value, as shown by the evidence, is

negligible in general, and equally so in this partic-

ular case. (R. 90, 181, 125.) The trees are not grown

commercially, and from the testimony of witnesses

of plaintiffs-in-error and others the cedar trees

and cedar bushes on the lands are of no substantial

value, and are not comparable in value to the apple

orchards. (R. 127, 181.)

The cedar trees sought to be cut down consist

of about 215 small and large, 2 1-2 to 10 inches in

diameter, distributed along both sides of a road-

way, with fields on both sides; a small cedar grove

of about two acres; about 148 more in a lot of 4 to

6 acres, and several hundred cedar bushes scattered

in the fields that have been permitted to encumber

the ground, and a few trees elsewhere. (R. 121.)

The cedar trees are similar to those of appar-

ently same size and condition in the vicinity and

are generally doted. (R. 124, 125.) The lumber

value of the cedars as shown by plaintiffs-in-error

themselves is negligible, the six inch size, for a

single cut having a sale value as lumber of about

12 cents at most, which price would include cost of

cutting, logging, hauling, sawing and marketing.

But whatever the cedars are actually worth

when cut down, the plaintiffs-in-error are not de-

prived of the material. Not a stick of the cedar

tree is taken by the Entomologist.

To control the disease, and as the only method

of control, the cedars must be cut down, but in

ee

7

abating the nuisance, the least practicable injury

is done. Thus, the trees are cut down without cost

to the cedar tree owner; the trees are trimmed

closely, and to the size of 2 inches at the small end;

the limbs likewise trimmed into wood and down

to the size of 2 inches; the brush are piled, and

even burned if desired; and in addition an allow-

ance is made to the cedar tree owner for any inci-

dental injury done to the land, in the cutting down

of the cedar trees, and in superintending the

work. (R. 153.)

The actual cost of cutting down all the red

cedars, and doing all the work carefully, as pro-

vided by the order, would be in the instant case

approximately $150.00, which will give some fur-

ther idea of the few cedars that are to be removed.

(R. 98, 103.)

The court in the case of Bowman v. Entomolo-

gist, makes it a matter of common knowledge that

the cedar trees in the Valley are of very little

value for any purpose, and are actually negligible

commercially in value, and the evidence shows this

to be especially true in present case. (R. 124, 125.)

The actual value of the cedars was de minimis;

the removal of the cedars enhanced the actual

value of the land for grazing and other farm pur-

poses. The order provides payment to plaintiffs-

in-error for the compensation as provided by the

act as construed by our highest court. (R. 144, 145,

147, 152.)

8

THE ARGUMENT

The Act of 1914, as amended from time to

time to 1924, and its continued existence upon the

statute books of the state, is a plain and impressive

recognition of the importance of apple growing in

Virginia, and the public necessity for its protec-

tion and development. The Act as amended from

time to time and as construed by the Supreme

Court of Appeals of Virginia, provides fairly and

reasonably for the exercise of the police power of

the state, to save a great agricultural industry of

the state, and is not amenable to the contention

that it in any way contravenes Sec. 1, of the Four-

teenth Amendment.

Defendant-in-error relies upon the right to

the construction placed upon the statute by the

Supreme Court of Appeals upon the statutes and

insists the following matters have been determined

and concluded thereby:

(a) That all cedar trees are a menace, or may

be a menace, to apple orchards in proximity to

cedar trees.

(b) The measure of damages contemplated

by the statute.

(ec) The meaning of “freeholders” and “local-

ity” as employed in the statute.

(d) The meaning intended b ythe Legislature

to be conveyed by the word “orchard” and that the

term “orchard” contemplated orchards shown to.

9

have been within the 1 mile and 2 mile limit of

the Miller cedars.

THE STATUTE IS NOT REPUGNANT TO THE

FOURTEENTH AMENDMENT

The contention of plaintiff is that the act is

repugnant to Sec. 1, of the Fourteenth Amendment,

that is to say:

(1) That it deprives plaintiff’s-in-error of

their property, without due proces sof law; and

(2) That it denies plaintiffs-in-error of the

equal protection of the laws.

These propositions are set forth in varying

forms in their assignment of errors.

EFFECT OF STATE SUPREME COURT’S IN-

TERPRETATION OF STATUTE

American Railway Express Co. v. Kentucky,

U. S., 71 L. Ed. (Adv. 457.) Edward Hines Yellow

Pine Trustees v. Martin, U. S. 71 L. Ed. (Adv. 607.)

North Loraimie Land Co. v. Hoffman, 268 U. S.

282, 69 L. Ed. 563. Fidelity Nat. Bank & T. Co.

v. Swope, U. S., 71 L. Ed. (Adv. 559.) Charles H.

Graves, Plaintiff v. State of Minnesota, U. S., 71

L. Ed. (Adv. 148, 145.) Herbert v. Louisiana, U. S.

71, L. Ed. (Adv. 113.)

7

10

The record of this case shows that the petition

containing at least 10 qualified freeholders of Lee

Magisterial District was presented to the State

Entomologist; that the Entomologist made pursu-

ant thereto a preliminary investigation to ascer-

tain whether there existed red cedars within the

prescribed area, constituting a menace to the or-

chards of the locality; that the State Entomologist

duly made the investigation, and finding that the

plaintiffs-in-error owned cedars within the pro-

scribed area constituting the host plant of the di-

sease, and a menace to the apple orchards, also

duly notified, as provided by the statute, the plain-

tiffs-in-error of the result of his investigation, and

directed the owner to cut down within a specified

time the offending cedars; that an appeal, as pro-

vided by the act, was promptly taken by plaintiffs-

in-error, and a full and fair trial was had before

the Circuit Court where the plaintiffs-in-error pre-

sented their objections and defenses to the pro-

ceeding; that plaintiffs-in-error have not been de-

prived of their property without due process of

law, nor have they in any sense been denied the

equal protection of the law.

Defendant-in-error insists that the Cedar Rust

Act provides for the reasonable exercise of the

police power of the state for the control of the

cedar rust disease; that there exists a perfectly

reasonable relation between the character of the

legislation and the policy to be subserved; and that

the act does not provide for “an warranted and

arbitrary interference” with the constitutional

aa

11

rights of plaintiffs-in-error; but that on the other

hand it does provide, as do similar acts of other

states, for the reasonable exercise by the state of

the police power of the state, for the control of

a disease, which if not eradicated o reontrolled will

certainly result in the extinction of the orchard in-

dustry—one of the leading agricultural industries

in Virginia.

a.

PLAINTIFFS’ CONTENTION THAT THE

STATUTE IS INVALID IN THAT IT PRO-

VIDES FOR THE TAKING OF PRIVATE

PROPERTY, NOT FOR PUBLIC USE, BUT FOR

THE BENEFIT OF OTHER PRIVATE PER-

SONS.

This contention will be considered more fully

in connection with centention of Plaintiffs-in-Er-

ror II. In refutation of this contention defend-

ant at this point cites:

Bowman v. Entomologist, 128 Va. 351; 105 S.

E. 141; 12 A. L. R. 1121, and annotation; Kelleher

v. Schoene, 14 F. (21.) 347; Kelleher v. French, 22

F. (2d.) 343; Balch v. Glenn (Kans.), 43 L. R. A.

(N. S.) 1080; Los Angeles County v. Spencer (Cal,)

77 Am. St. R. 217; State v. Main (Conn.), 36 L. R. A.

523; Colville v. Fox (Mont.) L. R. A. 1915 F. 894;

Louisiana State Board v. Tanzmann, L. R. A. 1917

C 894,

12

| I.

THE CONTENTION THAT THE ACT CANNOT

BE SUSTAINED AS A LEGITIMATE EXER-

CISE OF THE POLICE POWER

It is true, as state dby plaintiffs-in-error, that

defendant-in-error contends, as the basis of the

proceeding that the state has the right to cut

down the cedar trees in the exercise of the police

power; and defendant-in-error insists that rea-

sonable regulations, whether under crop pest or

special laws enacted to prevent infection of trees

and orchards have uniformly been held everywhere

to be within the police power. It is not contended,

of course, that one man’s property may be taken

for the benefit of others, but it is contended that

in the enjoyment of property the owner shall not

use it in a way as to endanger the rights and prop-

erty of others. The evidence in this case discloses

that the plaintiffs-in-error are maintaining a con-

stant menace to the orchard business and thus to

the general welfare. It is insisted that they have

no more right to use their land in growing such

trees, than to use it to keep cattle afflicted with or

exposed to “foot and mouth” disease, or for main-

taining any other business which endangers the

safety, morals, health or general welfare of the

community. Kelleher v. French Vol. 22 (2) 345.

In the annotation to case of Bowman v. Ento-

mologist, 12 A. L. R. 1136 (128 Va. 353, the editor

13

recognizes generally the constitutionality of sim-

ilar acts in the following language:

“It is well established as a general propo-

sition of law that reasonable regulations en-

acted to prevent the spread of weeds or noxious

vegetation, and to prevent the infection of

trees, orchards and crops, are within the police

power of the state.”

And again at page 1138, the editor further

stated, without a suggestion of doubt or uncer-

tainty:

“Statutes enacted for the purpose of pro-

tecting orchards, trees and crops from contag-

ious and infectious diseases have uniformly

been held to be within the police power of the

state, and their constitutionality has been sus-

tained, except in several instances where the

particular statutes failed for some reason to

meet constitutional requirements.”

In 1920, the case of Bowman v. Entomologist

was decided by the Supreme Court of Appeals.

From that date for seven years the correctness of

that decision has not been successfully challenged,

and under the law as construed, large areas of

lands have been relieved of the menace. (R. 78, 80,

83, 95, 101, 110, 152.)

14

In that case (p. 370, 1), the court said:

“That the destruction of the red cedar in

said sections which thus constitute a menace

to the apple trees is absolutely necessary to

prevent the extinction therein of the apple in-

dustry. That they are not planted or culti-

vated but are indigenous to the soil, springing

up where the soil is not cultivated and grow-

ing wild. That they are valuable only when

they have attained a sufficient size to make

posts or fuel x x x Under the statute in ques-

tion, all of the posts of the trees available for

fuel o rfence posts are left undestroyed and re-

main the property of the owners x x x. Cer-

tainly as compared wit hthe value of the apple

trees to which their existence is a serious men-

ace, their value is de minimis.”

Kelleher v. Schoene, 14 Fed. (2d) 348—

“All property rights are held subject to

the fair exercise of the power to make regula-

tions that are reasonably necessary to secure

the welfare of the community. If the regula-

tion is not capricious, arbitrary or unjustly

discriminatory, and the means employed have

a real relation to the ostensible purpose, the

statute may be a valid exercise of the police

power. x x x The fact that only one class, the

owners of infected red cedar trees are injured

by the statute does not deny the equal protec-

tion of the laws, since all of such owners are

equally subject to the law.”

15

Lawton v. Steele—

162 U. S. 136, 38 L. Ed. 388:

“The extent and limit of what is known as

the police power have been a fruitful subject

of discussion in the Appellate Courts of nearly

every state in the Union. It is universally con-

ceded to include everything essential to the

public safety, health, x x x Beyond this how-

ever, the state may interfere wherever the pub-

lic interests demand it, and in this particular

case a large discretion is necessarily vested in

the legislature to determine not only what the

interests of the public require, but what meas-

ures are necessary for the protection of such

interests.”

Bacon v. Walker,

204 U. S. 317, 51 L. Ed. 502:

“These cases make it unnecessary to con-

sider the argument of counsel based upon what

they deem to be the limits of the police power

of a state, and their contention that the statute

of Idaho transcends those limits. It is enough

to say that they have fallen into the error ex-

posed in Chicago, B. & Q. R. Co. v. Illinois, 200

U. S. 561, 592, 50 L. Ed. 596, 609, 26 Sup. Ct.

Rep. 341. In that case we rejected the view that

the police power cannot be exercised for the

general well-being of the community. That

power, we said, embraces regulations designed

16

to promote the public conpenience or the gen-

eral prosperity, as well as regulations design-

ed to promote the public health, the public

morals, or the public safety. We do not enter,

therefore, into the discussion whether the

sheep industry is legitimate, and not offensive.

Nor need we make extended commend on the

2-mile limit. The selection of some limit is a

legislative power, and it is only against the

abuse of the power, if at all, that the courts

may interpose. But the abuse must be shown.

It is not shown by quoting the provision which

expresses the limit. The mere distance ex-

pressed shows nothing.

“This view of the power of the state, how-

ever, is too narrow. That power is not confin-

ed, as we have said, to the suppression of what

is offensive, disorderly, or unsanitary. It ex-

tends to so dealing with the conditions which

exist in the state as to bring out of them the

greatest welfare of its people. This is the

principle of the cases which we have cited.”

Buchanan v. Worley—

245 U. S. 74, 62 L. Ed. 74:

“The authority of the state to pass laws

in the exercise of the police power having for

their object the protection of the public health,

safety and welfare, is very broad, as has

been affirmed in numerous and recent decis-

ions of this court. Furthermore, the exercise

17

of this power, embracing nearly all legislation

of a local character, is not to be interfered with

by the courts where it is within the scope of

legislative authority, and the means adopted

reasonably tend to accomplish a lawful pur-

pose.”

Thomas Cusack Co. v. Chicago,

242 U. S. 530, 61 L. Ed. 475:

“We therefore content ourselves with say-

ing that while this court has refrained from

any attempt to define with precision, the limits

of the police power, yet the disposition is to

favor the validity of laws relating to matters

completely within the territory of the state

enacting them, and it so reluctantly disagrees

with the local legislative authority, primarily

the Judge of the public welfare, especially

when its action is approved by the highest

court of the state whose people are directly

concerned, that it will interfere with the action

of such authority only when it is plain and

palpable that it has no real or substantial re-

lation to the public health, safety, morals or

to the general welfare.

Chicago, B. & Q. R. Co. v. Illinois—

200 U. S. 592, 50 L. Ed. 609:

“We hold that the police power of a state

18

embraces regulations designed to promote the

public convenience or the general prosperity,

as well as regulations designed to promote the

public health, the public morals, or the public

safety. Lake Shore & M.S. R. Co. v. Ohio,

173 U. S. 285, 292, 43 L. Ed. 702, 704,19 Sup. Ct.

Rep. 465; Gilman v. Philadelphia, 3 Wall. 713,

729, 18 L. Ed. 96, 100; Pound v. Turck, 95 U. S.

459, 464, 24 L. Ed. 525, 527, x x x And the valid-

ity of a police regulation, whether established

directly by the state or by some public body

acting under its sanction, must depend upon

the circumstances of each case -and the char-

acter of the regulation, whether arbitrary or

reasonable, and whether really designed to ac-

complish a legitimate public purpose.”

id. 594, L. Ed. 610:

“But the clause prohibiting the taking of

private property without compensation ‘is not

intended as a limitation of the exercise of

those police powers which are necessary to the

tranquility of every well-ordered community,

nor of that general power over private prop-

erty which is necessary for the orderly evis-

tence of all governments. It has always been

held that the legislature may make police regu-

lations, although they may interfere with the

full enjoyment of private property, and though

no compensation is given.”

19

Bowman v. Entomologist: 128 Va. 360,

“Is the act x x x valid as enacted under

the police power of the state, for the protection

of the public interest, and is it a valid exer-

cise of such power?”

“This question must be answered in the af-

firmative.”

Concerning the opinion in the Bowman case in

its discussion of the due process and equal pro-

tection clauses of the 14th Amendment, Judge Mc-

Dowell, in Kelleher v. Schoene, p. 346, said:

“While we regard the opinion in the Bow-

man case as well reasoned, it is in respect to

the federal constitutional question merely per-

suasive, and the plaintiff is entitled to have

the independent judgment of this court as to

these questions.”

Corpus Juris, Vol. 12, p. 904:

“As applied to the powers of the states of

the American Union, the term is also used to

denote those inherent governmental powers

which, under the federal system established by

the constitution of the United States are re-

served to the several states.” (Section 412).

“The police power is to be clearly distin-

guished from the right of eminent domain;

“a

20

and the distinction lies in this, that in the ex-

ercise of the latter right, private property is

taken for public use and the owner is invari-

ably entitled to compensation therefor. While

the police power is usually exercised merely

to regulate the use and enjoyment of property

by the owner, or, if he is deprived of his prop-

erty outright, it is not taken for public use,

but rather destroyed in order to promote the

general welfare of the public, and in neither

case is the owner entitled to any compensation

for any injury which he may sustain in con-

se yuence thereof” &e. (Sec. 413.)

Ruling Case Law, Vol. 6, p. 189:

“The police power of the state, never hav-

ing been exactly defined or circumscribed by

fixed limits, is considered as being capable of

development and modification within certain

limits, so that the powers of government con-

trol may be adequate to meet changing social,

econemic and political conditions. It is very

broad and comprehensive and is liberally un-

derstood and applied. The changing conditions

of society make it imperative for the state to

exercise additional powers, and the welfare of

society may demand that the state should as-

sume such powers.”

id 206:

“The police power extends to the enact-

ment of all such wholesome and_ reasonable

laws, not inconflict with the Constitution of

21

the state or the United States as they may deem

conducive to the public good. This may in-

clude legislation to increase industries of the

state, develop its resources, and add to its wel-

fare and prosperity.”

Ruling Case Law, Vol. 1, p. 790:

“While in a strict sense this discretion is

judicial in its nature, it does not constitute a

delegation of ‘judicial powers’ within the

meaning of the usual constitutional inhibition

against the delegation of judicial powers to

an administrative officer. Consequently, sta-

tutes providing for the summary destruction

of vegetation infected with contagious pests,

without any prelimianry judicial inquiry and

without compensating the owner for the re-

sulting loss, are perfectly constitutional so

long as they themselves define what constitut-

es a nuisance, and there is a right to a subse-

quent judicial review of the action of the ad-

ministrative officer. A property thus destroy-

ed is confiscated under the police power of the

state, the owner thereof is not entitled to be

compensated as a matter of right.”

Lewis on Eminent Domain—3d. Ed., Sec. 6:

“Whatever restraints the legislature im-

poses upon the use and enjoyment of property

withing the reason and principle of this duty,

the owner must submit to, and for any incon-

venience or loss which he sustains thereby, he

is without remedy. It is a regulation, and not

22

a taking, an exercise of police power and not

of eminent domain. To destroy property be-

cause it is a public nuisance is not to appro-

priate it to a public use, but to prevent any

use of it by the owner, and to put an end to its

existence, because it could not be used consist-

ently with the maxim sic utre tuo ut alienum

non laedas.”

American State Reports, Vol. 77, p. 221:

“The lesiglature has the power to enlarge

the category of public nuisances by declaring

places or property used to the detriment of

public interests or to the injury of the health,

morals or welfare of the community, to be

nuisances, although not such at common law.”

Mugler v. Kansas, 123 U. S. 623; Noble State

Bank v. Harkell, 219 U. S. 104, 55 L. Ed. 112;

Eubank v. Richmond, 226 U. S. 142, 57 L. Ed.

158; Fertilizer v. Hyde Park, 97 U. S. 650;

Encyz!opedia Supreme Ct. Reports, Vol. 9, p.

473, 475.

Louisiana State Board v. Tanzmann,

L. R. A. 1917 C 894:

“The owners of the other groves are en-

titled to protection now before the destruction

emanating from defendant’s place overtakes

their groves.”

Balch v. Glenn,

23

L. R. A. (N. 8.) 1080, 119 Pac. 67 (Kansas)

(syllabus)

“The statute is designed to protect and

promote the horticultural interests of the

state, and in effect makes all orchards, trees,

shrubs and plants infested with the pests men-

tioned, in the statute, public nuisances, and

being a proper exercise of the police power, it

is not unconstittuional because it authorizes

the expense of abating such nuisances to be

charged against the property of the owner.”

“The statute is not invalid because it dele-

gates to the commisison the power to declare

the existence of conditions which call into

operation the provisions of the statute.”

County of Los Angeles v. Spencer,

126 California 670, 77 Am. St. R. 220:

“It is well known that the existence of the

fruit industry in the state depends upon the

suppression and destruction of the pests men-

tioned in the statute. The act in question is,

therefore, a proper exercise of the police

power.” x x x

Louisiana State Board v. Tanzmann,

Ann. Cases 1917 E 217, 73 So. 854 (syllabus) :

“The destruction by legislative authority

24

of orange trees affected by a disease for which

no cure has been discovered, and which is

highly contagious and infectious ,is not a tak-

ing of such property without due process of

law, but is a competent exercise of the police

power of the state.”

State v. Maine,

37 Atl. 89, 61 Am. St. Rep. 30:

In that case it was held that the statute re-

quiring the destruction of peach trees infected

with a disease known as “Yellows” without com-

pensation, was a proper exercise of the Police

Power.

Howard v. State,

242 S. W. 818, 154 Ark. 430:

In that case, the plaintiff-in-error was order-

ed, under regulations promulgated by the Crop

Pest Board, to cut down his cedar trees, at his own

expense. Under the law, a penalty was authorized

and plaintiff-in-error refusing to carry out the

order for the cutting of the cedars, was convicted

in the lower court, and upon appeal, the judgment

of the !ower court was affirmed, with apparently

every possible assignment of error made.

Other authorities—

Constitution, Article X.:

25

Hamilton v. Kentucky Distillery Co., 251 U. S.

156, 64 L. Ed. 199;

Purity Extract Co. v. Lynch, 226 U. S. 192, 57

L. Ed. 184;

Schmindingre vy. Chicago, 226 U. S. 578, 57 L.

Ed. 364;

Colvill v. Fox, 149 Page. 496, L. R. A. (N. S.

1915 F 895;

Wedemyer v. Crouch, 43 L. R. A. (N. S.) 1080;

Noble State Bank v. Haskall, 219 U. §. 104, 55

L. Ed. 112;

Arkansas v. Kansas T. & Coal Co., 183, N. S.

189, 46 L. Ed. 146.

Nor is there anything in the cases cited by

plaintiffs-in-error that militate against the con-

tention of defendant-in-error.

Lockner v. New York, 198 U. S. 45, and Dobbins

v. Los Angeles, 195 U. S. 233, and other cases cited,

in no way seem to ke at variance with the other

cases cited by defendant-in-error.

In the case of Penna. Coal Co. v. Mahon, 260

U. S. 398, is not in point. In that case; the owner of

land, sold the surface, and retained the underlying

coal, with right to mine it. The Legislature had

enacted a law prohibiting the mining of coal un-

der private dwelling or streets or in cities in places

where the right to mine such coal was reserved by

the mine owner in the grant of the surface. The

court by a majority opinion held that the effect of

the act was to deprive the mine owner o fthis pri-

vate property without due process of law, and that

26

as a regulatory statute the law went too far, and

was taking of property for which compensation

should be made, and while manifestly a close case,

by the majority opinion of the court, the statute

was declared as extending authority beyond the

reasonable exercise of the police power of the

state.

The decision is certainly not in point to main-

tain that a few scattering cedar trees of very lit-

tle if any substantial value, should be permitted to

stand when containing disease spores of the most

virulent type at the point of annihilating a very

necessary and valuable industry of this and other

states.

As hereinabove suggested, the legislation is

not novel. Among the states that are controlling

or have the power to control the disease by cutting

down of the cedars, whether under special act or

crop pest regulations, are: Arkansas, New York,

Illinois, \/est Virginia and Pennsylvania, and it is

not believed any case will be cited showing a simi-

lar act to have been declared unconstitutional by

any court.

In addition to what has been said, in answer

to the contention that the act is not a proper exer-

cise of the police power of the state, reference is

further made to Bowman v. Entomologist, 128 Va.

351, 105 S. E. 141; 12 A. L. R. 1121.

27

1.

CONTENTION THAT THE CONTROL OF

PROPERTY OF PLAIN TIFFS-IN-ERROR IS

NOT EXERCISED UNDER THE STATUTE, BY

OTHER OWNERS OF PROPERTY

The statute in providing that it should be

necessary to have ten freeholders in the unit con-

sisting of the district or county, as the case may

be, evidently contemplated that there should not

be an arbitrary and unnecessary demand upon the

Entomologist, and that this provision should at

least be a guaranty of good faith in any request

for an investigation.

All that the 10, instead of 1, could do was to

request a “preliminary investigation.” These 10

had no controlling power except to require an in-

vestigation to be made. If 10 freeholders cannot

be found willing to have an investigation made,

and the cedars cut and expense borne by the or-

chardists of the district or county, as the case

may be, it would be quite convincing that the cedars

should not be cut.

The argument raised by the plaintiffs-in-error

against some personal setting in motion of the

machinery would afply in other. cases—civil and

minor criminal matters. In ordinary practice, the

building of new roads, and new bridges, is institut-

ed by a petition.

28

But the draftsman of the Cedar Rust Act must

have had before him, the provision of the Code of

Virginia relating to abatement of nuisances, the

constitutionality of which will hardly be doubted.

That act provides as follows:

“When complaint is made to the Circuit

Court of any county, or the corporation court

of any city of this state, by five or more citi-

zens of any county, city or town, setting forth

the existence of a public or common nuisance,

the court or Judge thereof in vacation shall

summon a special grand jury x x x to investi-

gate such complaint; and if upon a full inves-

tigation of such complaint the grand jury is

satisfied” &c.

This statute was declared constitutional in

Jeremy Improvement Co. v. Commonwealth, 106

Va. 482, 56 S. E. 224.

Judge Parker, Circuit Judge in Kelleher v.

French, 22 F. (2d.) 343, says:

“In this respect the procedure is analog-

ous to that prescribed by section 1520 of the

Code of Virginia relating to public nuisances,

which provides that upon complaint of five

or more citizens of a county that a public nui-

sance exists therein, a special grand jury shall

29

be summoned to investigate the complaint, and

if found to exist to institute proceedings look-

ing to the abatement.”

Judge McDowell in Kelleher v. Schoene, 14 F.

(2d.) 347, uses this pertinent language:

“So long as a request is not signed by 10

freeholders, the owner of cedar trees remains

undisturbed, and the signing of a request does

not determine anything except that at least 10

freeholders desire that an official search for

infected cedar trees be made in some designat-

ed territory. The provision in question tends

to protect the owners of cedar trese from pos-

sible official] overzealousness, as well as the

orchardists from the ultimate payment of

damages and expenses, incurred in the possibly

unnecessary destruction of the trees.”

In the case of Eubank v. Richmond, 226 U. S.

137, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, is relied

upon by plaintiffs-in-error, in their contention that

this provision of the statute denies to them due

process and equal protection of the law; but de-

fendant-in-error contends that there is a wide

difference between the two cases.

In the Eubank case, the Supreme Court held

invalid a city ordinance which required the com-

mittee on streets of the city to establish a build-

ing line upon the request of two-thirds of the prop-

erty owners abutting on the street, and inhibited

the erection of any building beyond the building

line thus established.

30

The Supreme Court of Virginia, referring to

Eubank case and quoting Kelleher v. Schoene (R.

164,) said:

“This statute differs so widely from the

ordinance involved in Eubank v. Richmond

x x x and from the statutes in the other cases

cited by counsel for plaintiff, that we think it

profitless to discuss these cases.”

Judge Parker, in Kelleher v. French, 22 F. (2d)

343, with reference to the Eubank case, said:

“It is manifest that the principle decided

in that case has no application to the case at

bar. The only similarity between the two

cases is that in each case, the statute provides

for action by public authorities upon request

of property owners. In the Eubank case, how-

ever, the request of the property owners was

mandatory, and the action by the public au-

thorities merely carried out their will. Here

the request of the freeholders merely imposes

upon the State Entomologist the duty of mak-

ing inquiry and does not control the action.”

In North Laramie Land Co. v. Hoffman, 268

U. S. 282, 69 L. Ed. 957, the court said:

“The supreme court of Wyoming held

that the procedure followed complied with the

statutory requirements. By that determina-

tion we are bound. x x x In consequence, it has

31

been uniformly held that statutes providing

for taxation or condemnation of land may

adopt a procedure, summary in character, and

that notice of such proceedings may be indi-

rect, provided only that the period of notice of

the initiation of proceedings and the method

of giving it are reasonably adapted to the na-

ture of the proceedings and their subject-mat-

ter, and afford to the property owner reason-

able opportunity, at some stage of the proceed-

ings, to protect his property from an arbitrary

or unjust appropriation.”

IV.

CONTENTION THAT THE STATUTE IS VOID

FOR VAGUENESS AND UNCERTAINTY

This contention appears to be based upon the

alleged uncertainty as to who are contemplated by

the statute as eligible “freeholders.”

The Supreme Court of Appeals necessarily

determined that in the present case the petition-

ers applying to the Entomologist. were those con-

templated by the statute. That no reliance was

made by plaintiffs-in-error, that the petitioners

were not eligible to sign, or that any question

could be raised as to the sufficiency of the free-

holders or the petition, is manifest from the “Stip-

ulation” in the trial court (R. 47), as follows:

32

“It is stipulated between counsel that

counsel for the defendant waive the introduc-

tion of evidence to show that the petition upon

which the notice to the defendant from the

State Entomologist is founded was properly

signed by the requisite number of freeholders;

and waive any right to raise any question pre-

dicated upon the lack of such proof.”

But regardless of the binding force of the de-

cision of the Supreme Court of Appeals, and of

the Stipulction of parties, it is insisted that there

is no uncertainty as to what is meant by the word

“freeholders,” or who were intended to be includ-

ed as applicable to this case.

Section 893 of the Code provides that the Act

shall not be inforce until the Board of Supervisors

of any County shall by a recorded vote adopt the

same for their county or magisterial district in

their covinly.

Sec. 886 says:

“In any county in the state, where the

above mentioned disease exists x x x upon the

request in writing of 10 or more _ reputable

freeholders of any County or magisterial dis-

trict to make a preliminary investigation of

the locality from which said request is receiv-

ed” &e.

-—

33

It cannot, therefore, be fairly contended that

the statute contemplated that persons owning real

estate anywhere outside of the state would have

the right to petition, or that the use of the word

“freeholders” as employed in the statute renders

the act unconstitutional, on the ground of vague-

ness or uncertainty.

V.

; THE CONTENTION THAT THE ACT IS IN

VIOLATION OF THE CONSTITUTION, BY

REASON OF ALLEGED UNCERTANTY OF

THE WORD “LOCALITY”

Bearing in mind that the purpose of the pe-

tition is only to start an investigation, it is plain

that the word “locality” when used in that con-

nection related to the territory within two miles

of an apple orchard. The direction by the peti-

tioners is necessarily general, and when the in-

vestigation has been made, the proceeding to cause

the removal of the cedars is commenced by notice

of the Entomologist to the cedar tree owner.

Judge Burke, speaking for the court (R. 165)

well says:

“Aside from the fact that this assignment

is concluded by the Bowman case, we do not

34

think there is any doubt or uncertainty about

the use of the word ‘locality’ in that section.

The statute is to be read as a whole, and when

so read, it is fairly plain, that what was-to be

_ investigated was the existence of the infected

red cedar trees within two miles of an apple

orchard x x x The location of the cedars and

their distance from an apple orchard or or-

chards, is the subject of investigation and this

is the locality referred to in the statute.”

And the court quotes Judge McDowell, speak-

ing for the court in Kelleher v. Schoene (R. 165),

as follows:

“A reasonable construction of the statute

as a whole requires that the signers of any re-

quest to the Entomologist must own estates of

freehold in the county or district, as the case

may be, x x x and does not mean that the free-

holders who sign, must reside in, or must own

>,

estates lying in any particular ‘locality’.

VI.

THE CONTENTION THAT THE ACT IS UN-

CONSTITUTIONAL BECAUSE OF UNCER-

TAINTY IN MEANING OF WORD ‘ORCHARD’.

The meaning of the word orchard is common-

a

35

ly well known. But the highest State Court hav-

ing necessarily construed the word to include the

apple trees sought to be protected in the case, the

construction should for the purposes of this case

be accepted.

As was said by Circuit Judge Parker, speak-

ing for the Court (22 F. (2d.) 344(:

ihe next point is that the statute is in-

valid because of vagueness and indefiniteness.

The contention is based upon the use of the

words ‘orchard’ and ‘locality,’ and may be dis-

posed of in a few words. The word ‘orchard’

has always had a well understood meaning and

the use of such a term could not possibly ren-

der the statute void for vagueness” &c.

VI.

THE CONTENTION THAT PRIVATE PROP-

ERTY IS TAKEN UNDER GUISE OF POLICE

POWER FOR PUBLIC USE WITHOUT COM.-

PENSATION.

No successful effort was made by plaintiffs-

in-error to show that the cedars sought to be cut

down as necessary to eradicate the cedar rust, pos-

sessed any appreciable value. The trees on the Mil-

36

ler lands were on the other hand shown affirma-

tively to be inconsequential. Our courts have ac-

cepted it as a matter of common knowledge that

the red cedar trees possess a negligible value, and

in the instant case, in the assignment of error,

there is no assertion that the trees in themselves

do possess any appreciable value.

The question, of course, we must remember is

not whether the court construed the act properly,

but whether with the construction given, the act

is in violation of Sec. 1, of the Fourteenth Amend-

ment.

Chicago &ce. R. R. Co. v. Illinois, 200 U. S. 592,

57 L. Ed. 593, is quoted by plaintiffs-in-error; but

continuing further the quotation is found at bot-

tom of page 593 in the following language:

“Upon the general subject, there is no real

confiict among the adjudged cases. Whatever

conflict there is arises upon the question

whether there has been or will be in the par-

ticular cases within the true meaning of the

Constitution, a ‘taking’ of private property for

public use. If the injury complained of is only

incidental to the legitimate exercise of gov-

ernmental powers for the public good, then

there is no taking of property for the public

use, and a right to compensation on account

of such injury, does not attach under the Con-

37

stitution. Such is the present case. There

are unquestionably limitations upon the exer-

cise of the police power which cannot under

any circumstances be ignored. But the clause

prohibiting the taking of private property

without compensation is not intended as a lim-

itation of the exercise of those police powers

which are necessary to the tranquility of every

well ordered community, nor of that general

power over private property which is _neces-

sary for the orderly existence of all govern-

ments. It has always been hold that the leg-

islature may make police regulations, although

they may interfere with the full enjoyment of

private property, and though no compensation

is given.”

In Bowman v. Entomologist, 128 Va. 360, de-

cided nearly 8 years ago, the court held that the

cedar tree owner was not entitled to compensation

“as a matter of right,” that is to say, he was only

entitled to received that which the statute provided

he should be paid. This decision has become a

rule of property. Under the law, the cedar trees

in the large orchard areas of the Valley have

been cut down. Nor have plaintiffs-in-error shown

any good reason why the owner of the offending

cedars should be entitled to compensation other

than such as is specifically allowed by the act, for

maintaining what the Legislature 13 years ago de-

clared to be a public nuisance, and should be ren-

dered harmless. No land is taken. The cedar trees

38

are cut down, but their products are not taken from

the property; the trees are cut down, trimmed, the

poles saved for the cedar tree owner; the wood

trimmed out for him, and a small allowance made

him as a compensation for incidental damage done

in the act of cutting; and as shown overwhelm-

ingly by the evidence, the land with the cedars re-

moved is enhanced in actual value.

Surely, the Legislature of Virginia in 1914,

was not actuated by improper motives in enacting

this law that places no burden of expense upon the

cedar tree owner to abate the nuisance upon his

own land, nor were subsequent legislatures guilty

of wrong doing in amending the Act in 1920, 1922,

and 1924, instead of repealing it; nor does the Act

as construed provide for a mere arbitrary

or capricious exercise of the police power

bitrary or capricious exercise of the police power

of the state, as contended by the plaintiffs-in-error.

The court in American Railway Express Co. v.

Kentucky, U.S. ,71 L. Ed. (adv. 457)

plainly expressed the conditions under which inter-

ference would be made as follows:

“We cannot interfere unless the judgment

amounts to mere arbitrary or capricious exer-

cise of power or is in clear conflict with those

fundamental ‘principles which have been es-

tablished in our systems of jurisprudence for

-—

39

the protection and enforcement of private

rights.’ ”

The annotation to Bowman v. Entomologist,

12 Am. L. R., 1138, 1148, furnishes, it is believed, a

satisfactory answer to this specification of error

where the following cases are quoted :

Balch v. Glenn (Kans.) 43 L. R. A. (N. S.) 1080

(providing for the extermination of San Jose Scale

and other orchard pests at the owners’ expense):

Los Angeles County v. Spencer, (Cal.) 77 Am. St.

R., 217 (making the expense of abating the nuisance

a lien upon the premises of the owner); State v.

Main (Conn.) 36 L. R. A. 623, (providing for the

destruction of peach trees affected with Yellows,

without compensation); Colvill v. Fox (Mont.) L.

R. A. 1915 F 894 (holding the destruction of fruit

lawful for the protection of others); Carstens v.

DeSellem, 144 Pac. 934 ( holding destruction with-

cut notice of pear trees affected by fire blight law-

ful); Los Angeles Berry Growers Co-Op. Assn. v.

Huntly, 146 Pac. 373; Louisiana State Board v.

Tanzmann, L. R. A. 1917 C 894 ¢ holding the destruc-

tion of orange groves affected by canker, without

compensation, lawful).

In conclusion, it is submitted that plaintiffs-

in-error have not shown that the Cedar Rust Law

is repugnant to Sec. 1, of the Fourteenth Amend-

ment to the Federal Constitution; but that on the

40

pears the act provides

contrary it affirmatively ap

f the police power of

for a reasonable exercise 0

the state. |

Respectfully submitted,

JOHN R. SAUNDERS,

Attorney General.

F. 8. TAVENNER,

Counsel for Defendant-in-Error.