1. An Act of Virginia provides, compulsorily, for the cutting
down of red cedar trees within two miles of any apple orchard when
found upon official investigation to be the source or "host plant"
of the communicable plant disease called cedar rust and to
"constitute a menace to the health of any apple orchard in said
locality." The owner is allowed a judicial review of the order of
the State Entomologist directing such cutting, and may use the
trees when cut, but no compensation is allowed him for their value
standing or for decrease in market value of the realty caused by
their destruction. The evidence shows that the life cycle of the
parasite has two phases, passed alternately on the cedar and the
apple; that it is without effect on the value of the cedar, but
destructive of the leaves and fruit of the apple; that it is
communicable by spores from the cedar to the apple over a radius of
at least two miles; that the only practicable method of controlling
it is destruction of all red cedar trees within that distance of
apple orchards, and that the economic value of cedars in Virginia
is small as compared with that of the apple orchards.
Held, that the Act is consistent with the Due Process
Clause of the Fourteenth Amendment. P.
276 U. S.
277.
2. When forced to make the choice, the state does not exceed its
constitutional powers by deciding upon the destruction of one class
of property in order to save another which, in the judgment of the
legislature, is of greater value to the public. P
276 U. S.
279.
3. Preferment of the public interest, even to the extent of
destroying property interests of the individual, is one of the
distinguishing characteristics of every exercise of the police
power which affects property. P.
276 U. S.
280.
Page 276 U. S. 273
4. The provision of the statute that the investigation of the
locality shall be made upon the request of ten or more reputable
freeholders of the county or magisterial district does not make it
objectionable as subjecting private property to arbitrary or
irresponsible action of private citizens, since the decision
whether the facts revealed bring the case within the statute is
made by the State Entomologist, and subject to judicial review.
Eubank v. Richmond, 226 U. S. 137,
distinguished. P.
276 U. S.
280.
5. Since no penalty can be incurred or disadvantage suffered
under the statute in advance of the judicial ascertainment of its
applicability, and since it was held applicable in this case by the
state court, the objection to its vagueness is without weight. P.
276 U. S. 281.
146 Va. 175 affirmed.
Error to a judgment of the Supreme Court of Appeals of Virginia,
which affirmed a judgment affirming on appeal an order of the State
Entomologist, Schoene, requiring the plaintiffs to cut down a large
number of ornamental red cedar trees growing on their property. The
judgment allowed them $100 to cover the expense of removing the
cedars.
Page 276 U. S. 277
MR. JUSTICE STONE delivered the opinion of the Court.
Acting under the Cedar Rust Act of Virginia, Va.Acts 1914, c.
36, as amended by Va.Acts 1920, c. 260, now embodied in Va.Code
(1924) as §§ 885 to 893, defendant in error, the State
Entomologist, ordered the plaintiffs in error to cut down a large
number of ornamental red cedar trees growing on their property as a
means of preventing the communication of a rust or plant disease
with which they were infected to the apple orchards in the
vicinity. The plaintiffs in error appealed from the order to the
Circuit Court of Shenandoah County which, after a hearing and a
consideration of evidence, affirmed the order and allowed to
plaintiffs in error $100 to cover the expense of removal of the
cedars. Neither the judgment of the court nor the statute as
interpreted allows compensation for the value of the standing
cedars or the decrease in the market value of the realty caused by
their destruction, whether considered as ornamental trees or
otherwise. But they save to plaintiffs in error the privilege of
using the trees when felled. On appeal, the Supreme Court of
Appeals of Virginia affirmed the judgment.
Miller v. State
Entomologist, 146 Va. 175, 135 S.E. 813. Both in the circuit
court and the Supreme Court of Appeals, plaintiffs in error
challenged the constitutionality of the statute under the due
process clause of the Fourteenth Amendment, and the case is
properly here on writ of error. Judicial Code, § 237a.
The Virginia statute presents a comprehensive scheme for the
condemnation and destruction of red cedar trees infected by cedar
rust. By § 1, it is declared to be unlawful for any person to
"own, plant or keep alive and standing" on his premises any red
cedar tree which is or may be the source or "host plant" of the
communicable plant disease known as cedar rust, and any such tree
growing within a certain radius of any apple orchard is declared to
be a public nuisance, subject to destruction. Section 2 makes it
the duty of the State Entomologist,
"upon the
Page 276 U. S. 278
request in writing of ten or more reputable freeholders of any
county or magisterial district, to make a preliminary investigation
of the locality . . . to ascertain if any cedar tree or trees . . .
are the source of, harbor, or constitute the host plant for the
said disease . . . 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 any apple orchard in said
locality."
If affirmative findings are so made, he is required to direct
the owner in writing to destroy the trees, and, in his notice, to
furnish a statement of the "fact found to exist whereby it is
deemed necessary or proper to destroy" the trees and to call
attention to the law under which it is proposed to destroy them.
Section 5 authorizes the State Entomologist to destroy the trees if
the owner, after being notified, fails to do so. Section 7
furnishes a mode of appealing from the order of the entomologist to
the circuit court of the county, which is authorized to "hear the
objections" and "pass upon all questions involved," the procedure
followed in the present case.
As shown by the evidence and as recognized in other cases
involving the validity of this statute,
Bowman v. Virginia
State Entomologist, 128 Va. 351;
Kelleher v.
Schoene, 14 F.2d
341, cedar rust is an infectious plant disease in the form of a
fungoid organism which is destructive of the fruit and foliage of
the apple, but without effect on the value of the cedar. Its life
cycle has two phases which are passed alternately as a growth on
red cedar and on apple trees. It is communicated by spores from one
to the other over a radius of at least two miles. It appears not to
be communicable between trees of the same species, but only from
one species to the other, and other plants seem not to be
appreciably affected by it. The only practicable method of
controlling the disease and protecting apple trees from its ravages
is the destruction
Page 276 U. S. 279
of all red cedar trees subject to the infection located within
two miles of apple orchards.
The red cedar, aside from its ornamental use, has occasional use
and value as lumber. It is indigenous to Virginia, is not
cultivated or dealt in commercially on any substantial scale, and
its value throughout the state is shown to be small as compared
with that of the apple orchards of the state. Apple growing is one
of the principal agricultural pursuits in Virginia. The apple is
used there and exported in large quantities. Many millions of
dollars are invested in the orchards, which furnish employment for
a large portion of the population, and have induced the development
of attendant railroad and cold storage facilities.
On the evidence, we may accept the conclusion of the Supreme
Court of Appeals that the state was under the necessity of making a
choice between the preservation of one class of property and that
of the other wherever both existed in dangerous proximity. It would
have been nonetheless a choice if, instead of enacting the present
statute, the state, by doing nothing, had permitted serious injury
to the apple orchards within its borders to go on unchecked. When
forced to such a choice, the state does not exceed its
constitutional powers by deciding upon the destruction of one class
of property in order to save another which, in the judgment of the
legislature, is of greater value to the public. It will not do to
say that the case is merely one of a conflict of two private
interests, and that the misfortune of apple growers may not be
shifted to cedar owners by ordering the destruction of their
property; for it is obvious that there may be, and that here there
is, a preponderant public concern in the preservation of the one
interest over the other.
Compare Bacon v. Walker,
204 U. S. 311;
Missouri, Kansas & Texas R. Co. v. May, 194 U.
S. 267;
Chicago, Terre Haute & Southeastern R.
Co. v. Anderson, 242 U. S. 283;
Perley v. North Carolina, 249 U.
S. 510. And, where the public interest is involved,
Page 276 U. S. 280
preferment of that interest over the property interest of the
individual, to the extent even of its destruction, is one of the
distinguishing characteristics of every exercise of the police
power which affects property.
Mugler v. Kansas,
123 U. S. 623;
Hadacheck v. Los Angeles, 239 U.
S. 394;
Village of Euclid v. Ambler Realty Co.,
272 U. S. 365;
Northwestern Fertilizer Co. v. Hyde Park, 97 U. S.
659;
Northwestern Laundry v. Des Moines,
239 U. S. 486;
Lawton v. Steele, 152 U. S. 133;
Sligh v. Kirkwood, 237 U. S. 52;
Reinman v. Little Rock, 237 U. S. 171.
We need not weigh with nicety the question whether the infected
cedars constitute a nuisance according to the common law, or
whether they may be so declared by statute.
See Hadacheck v.
Los Angeles, supra, 239 U. S. 411.
For where, as here, the choice is unavoidable, we cannot say that
its exercise, controlled by considerations of social policy which
are not unreasonable, involves any denial of due process. The
injury to property here is no more serious, nor the public interest
less, than in
Hadacheck v. Los Angeles, supra, Northwestern
Laundry v. Des Moines, supra, Reinman v. Little Rock, supra,
or
Sligh v. Kirkwood, supra.
The statute is not, as plaintiffs in error argue, subject to the
vice which invalidated the ordinance considered by this Court in
Eubank v. Richmond, 226 U. S. 137.
That ordinance directed the committee on streets of the City of
Richmond to establish a building line not less than five nor more
than thirty feet from the street line whenever requested to do so
by the owners of two-thirds of the property abutting on the street
in question. No property owner might build beyond the line so
established. Of this, the Court said (p.
226 U. S.
143):
"It [the ordinance] leaves no discretion in the committee on
streets as to whether the street [building,
semble] line
shall or shall not be established in a given case. The action of
the committee is determined by two-thirds of the property owners.
In
Page 276 U. S. 281
other words, part of the property owners fronting on the block
determine the extent of use that other owners shall make of their
lots, and against the restriction they are impotent."
The function of the property owners there is in no way
comparable to that of the "ten or more reputable freeholders" in
the Cedar Rust Act. They do not determine the action of the State
Entomologist. They merely request him to conduct an investigation.
In him is vested the discretion to decide, after investigation,
whether or not conditions are such that the other provisions of the
statute shall be brought into action, and his determination is
subject to judicial review. The property of plaintiffs in error is
not subjected to the possibly arbitrary and irresponsible action of
a group of private citizens.
The objection of plaintiffs in error to the vagueness of the
statute is without weight. The state court has held it to be
applicable, and that is enough when, by the statute, no penalty can
be incurred or disadvantage suffered in advance of the judicial
ascertainment of its applicability.
Compare Connally v. General
Construction Co., 269 U. S. 385.
Affirmed.
