Balch v. Glenn

• Decision Date: 11 November 1911
• Docket Number: 17,226
• Parties: S. W. BALCH, Appellant, v. A. P. GLENN et al., Appellees
• Court: Kansas Supreme Court

119 P. 67

85 Kan. 735

S. W. BALCH, Appellant, v. A. P. GLENN et al., Appellees

No. 17,226

Supreme Court of Kansas

November 11, 1911

Decided July, 1911.

Appeal from Sedgwick district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTES -- Creating Entomological Commission -- Constitutional. The statute creating the entomological commission and providing for the extermination of San Jose scale and other orchard pests (Gen. Stat. 1909, §§ 8727-8739) is a valid exercise of the police power.

2. STATUTES -- Same. The statute is not invalid because it delegates to the commission the power to declare the existence of conditions which call into operation the provisions of the statute.

3. STATUTES -- Same. The legislature of the state may declare that to be a nuisance which is detrimental to the health, morals, peace or welfare of its citizens, and may confer power upon local boards or tribunals to exercise the police power of the state when in the judgment of such tribunals the conditions exist which the legislature has declared constitute such nuisance.

4. STATUTES -- Same. Nor is the statute in question unconstitutional on the ground that it provides for taking private property without due process of law. It rests wholly with the legislature whether, in the exercise of its power of police regulation, the individual whose property is destroyed shall receive compensation therefor.

5. STATUTES -- Same. 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 mentioned in the statute public nuisances, and being a proper exercise of the police power is not unconstitutional because it authorizes the expense of abating such nuisance to be charged against the property of the owner.

6. STATUTES -- Same. Nor is the statute unconstitutional because no separate tribunal is provided by which the owner may contest the amount of expense which shall be charged against his property. The act requires notice to be served upon the owner stating the amount of expense incurred by the commission and notifying him that unless such expense be paid within twenty days the same will be taxed against his property. Held, that, ample notice being provided which gives the property owner an opportunity to question the amount of such expense in an action in any court of competent jurisdiction before his property is affected, he is afforded due process of law.

7. STATUTES -- Abating Nuisance -- Expenses -- Lien -- Constitutional. The lien given by the statute upon premises for the expense of abating such nuisance thereon is not for a delinquent tax but for an indebtedness due the county, and the provision authorizing such expense to be collected as other taxes are collected is not obnoxious to any constitutional inhibition.

John W Adams, and George W. Adams, for the appellant.

John S. Dawson, attorney-general, Earl Blake, and W. A. Ayres, for the appellees.

OPINION

PORTER, J.:

In this suit the appellant challenges the validity of chapter 386 of the Laws of 1907, as amended by chapter 27 of the Laws of 1909 (Gen. Stat. 1909, §§ 8727-8739), creating the entomological commission and providing for the extermination of San Jose scale. Appellant is the owner of a large orchard of apple and peach trees, grapes and other fruit, and sued to enjoin the defendants from entering upon his premises for the purpose of inspecting, spraying and destroying the fruit trees and vines, and from causing the expenses incurred in the performance of such services to be taxed against his property. In their answer appellees admitted that they were about to inspect, and, if necessary, destroy the trees, vines and other shrubbery on appellant's premises, and that the costs and expenses incurred by them would be taxed against his property; they alleged that appellant's orchard is infected with San Jose scale, and asked that he be enjoined from interfering in any manner with the work of the commission in exterminating the same. On the trial the court found the acts of the appellees justified, and enjoined appellant from interfering with the proceedings. From this judgment he appeals.

Chapter 386 of the Laws of 1907 creates the entomological commission, to consist of the secretary of the State Board of Agriculture, the secretary of the Kansas State Horticultural Society, the professor of entomology of the University of Kansas, the professor of entomology at the State Agricultural College, and a nurseryman actively engaged in the nursery business within the state, to be appointed by the governor. The purpose of the act is the suppression and extermination of San Jose scale and other injurious insect pests and plant diseases. In order to accomplish such purpose the entomologists, their assistants and employees, are authorized to enter upon the premises of any private individual and inspect, destroy, treat or experiment upon such insects or plant diseases. In case the officers mentioned or their employees shall find such insects or diseases to exist, they are required to mark in some conspicuous way all trees, vines, shrubs or plants so infested, and to give notice in writing to the owner, tenant, or person in charge of the premises, of the condition thereof. The act then provides that if the owner or person in charge shall not within ten days thereafter destroy or treat the same in accordance with the regulations and rules of the commission, the commission shall cause the work to be done. The act of 1907 provided that the expenses of such extermination or treatment, properly certified by the commission, should be collected by the county attorney of the county where such premises are located, who was directed to account therefor to the commission. The legislature of 1909 amended the act so as to provide that the expense incurred in inspecting, treating and exterminating such insect pests should be paid by the owner of the premises within a certain time after the services were performed, in default of which it should be taxed against the property and collected in the same manner as delinquent taxes. The amendment, so far as it relates to the present controversy, reads as follows:

"The necessary expense thereof shall be paid by the owner or owners of the real estate from which said infestation has been removed in pursuance of this act. The state entomologist or his deputy shall serve or cause to be served upon said owner or any one in possession and in charge of said real estate, a notice, stating the amount of said charge, and further stating that if said charge be not paid to the county treasurer of the county wherein said real estate is located within twenty days from the date of the service of said notice, that the same will become a lien upon said real estate. Copy of said notice, together with the proof of service, shall be at once filed with the county clerk, and if said amount is not paid within the time therein stated, said county clerk shall spread the same upon the tax roll prepared by him and said amount shall become a lien against said real estate and be collected as other taxes are collected, and said real estate shall be sold for nonpayment of said taxes the same as now or hereafter may be provided by law for sale of real estate for delinquent taxes. Should the owner of said real estate not pay said charges within the stated time, the same shall be presented to the board of county commissioners by the county clerk and by them allowed and paid out of the general fund of said county by the county treasurer, and when said amount is collected as taxes it shall be paid into the general fund of said county. The cost of eradication or treatment of such infestation, as above stated, shall be paid to the county treasurer, to whom the county clerk shall certify all amounts due as reported to him by the entomologist in charge. The county treasurer shall forward to the state treasurer on the first of each month all amounts thus received. These amounts shall be paid into the general fund of the entomological commission." (Laws 1909, ch. 27, § 1, Gen. Stat. 1909, § 8732.)

There was ample evidence to warrant the finding that appellant's orchard is infested with San Jose scale. It is conceded that the appellees were attempting to follow the provisions of the statute. They and their employees had gone upon the premises of the appellant and had marked certain trees and shrubs for destruction, and had marked others for treatment by spraying; they had given the appellant due notice in writing, ordering him within ten days thereafter to treat and destroy the pest under the rules and regulations of the commission. Upon his failure to comply with the order, the commission was about to cause the work to be done and the expense thereof charged against appellant's property.

The appellant asserts that the act of 1907, as amended by that of 1909, is unconstitutional. Generally stated, his contentions are: that the law deprives him of his property without due process of law, and therefore violates the fourteenth amendment to the federal constitution; that it deprives him of the right to a jury trial, in violation of section 5 of the bill of rights; that it attempts to confer judicial power upon the commission and its employees, and to give them authority to determine the amount of taxes which shall be assessed against the appellant's property, without notice or opportunity to contest the amount thereof; that it violates section 1 of article 11 of the constitution of Kansas requiring a uniform and equal rate of assessment and taxation. Little if any attempt is made in the brief to argue these propositions separately; but counsel for appellant urge the...