276 U.S. 272
Argued January 20, 1928.
Decided February 20, 1928.
273 Messrs. Randolph Harrison, of Lynchburg, Va.,
and D. O. Dechert, of Harrisonburg, Va., for plaintiffs in
Mr. F. S. Tavenner, of Woodstock, Va.,
for defendant in error.
Mr. Justice STONE delivered the opinion
of the Court.
Acting under the Cedar
Rust Act of Virginia, Acts Va. 1914, c. 36, as amended by
Acts Va. 1920, c. 260, now embodied in Va. Code (1924) as
sections 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, s 237a (28 USCA s 344).
Virginia statute presents a comprehensive scheme for the condemnation
and destruction of red cedar trees infected by cedar rust.
By section 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 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.
shown by the evidence and as recognized in other cases involving
the validity of this statute, Bowman v. Virginia State Entomologist,
128 Va. 351, 105 S. E. 141, 12 A. L. R. 1121; Kelleher v.
Schoene (D. C.) 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
279 of all red cedar trees, subject
to the infection, located within two miles of apple orchards.
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 none the less 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, 27 S. Ct. 289,
51 L. Ed. 499; Missouri, Kansas & Texas R. Co. v. May,
194 U. S. 267, 24 S. Ct. 638, 48 L. Ed. 971; Chicago, Terre
Haute & Southeastern R. Co. v. Anderson, 242 U. S. 283,
37 S. Ct. 124, 61 L. Ed. 302; Perley v. North Carolina, 249
U. S. 510, 39 S. Ct. 357, 63 L. Ed. 735.
And where the public interest is involved
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, 8 S. Ct. 273, 31 L. Ed. 205;
Hadacheck v. Los Angeles, 239 U. S. 394, 36 S. Ct. 143, 60
L. Ed. 348, Ann. Cas. 1917B, 927; Village of Euclid v. Ambler
Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303; Northwestern
Fertilizer Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036;
Northwestern Laundry v. Des Moines, 239 U. S. 486, 36 S. Ct.
206, 60 L. Ed. 396; Lawton v. Steele, 152 U. S. 133, 14 S.
Ct. 499, 38 L. Ed. 385; Sligh v. Kirkwood, 237 U. S. 52, 35
S. Ct. 501, 59 L. Ed. 835, Reinman v. Little Rock, 237 U.
S. 171, 35 S. Ct. 511, 59 L. Ed. 900.
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, 411 (36 S. Ct.
143). 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.
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, 33 S. Ct. 76, 57 L.
Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192.
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 (page 143 (33 S. Ct. 77)):
(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.
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, 46 S. Ct. 126, 70 L. Ed. 322.