Bowman v. Va. State Entomologist

Citation105 S.E. 141
PartiesBOWMAN. v. VIRGINIA STATE ENTOMOLOGIST. BOWMAN et al. v. SAME.
Decision Date18 November 1920
CourtVirginia Supreme Court

[COPYRIGHT MATERIAL OMITTED.]

Error to Circuit Court, Shenandoah County.

Two proceedings by the Virginia State Entomologist against Rebecca Bowman and against Rebecca Bowman and others. From judgment for plaintiff, defendants bring error. Affirmed.

These proceedings were instituted under the statute approved March 4, 1914 (Acts 1914, p. 49 et seq.), commonly known as the "Cedar Rust Law, " came to the court below on the appeal of the owners of the trees involved under the provisions of the statute, and they assail the validity of the statute on the several grounds mentioned and dealt with in the opinion below.

The said owners of said trees will be hereinafter referred to as the owners.

The sections of the statute which are especially involved in these proceedings are as follows:

"Section 1. Be it enacted by the General Assembly of Virginia, that it shall hereafter be unlawful within this state for any person, firm or corporation to own, 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 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.

"Sec. 2. 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 preliminary 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, harbor 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 any apple orchard in said locality. If upon such preliminary investigation 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 orchard or orchards in said locality and constitute a menace to the health of said apple orchard or orchards, the state entomologist or his assistant, shall give notice in writing to the owner or owners of said cedar tree or trees to destroy the same; such notice shall contain a brief statement of the facts 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 prescribed in such notice by the state entomologist cut down and destroy said cedar trees.

* * * * * * *

"See. 7. 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 county 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 hereby 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 trees are destroyed, and the costs incurred or to be incurred in cutting down trees under section two of this act. 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.

"Sec. 8. Whenever the court orders any damages paid out of the general fund of the county under the preceding section or such amount as the county treasurer may have paid out of the general fund of the county under section five of this act, the said county fund shall be reimbursed by a specific levy of not exceeding one dollar 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. 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 each district or districts together with the number of acres of orchards owned by each person.

"The court shall thereupon fix such specific amount per acre to be paid by each such 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 of this act.

"The court shall enter an order directing each owner to pay his respective portion so ascertained, to the county treasurer, which said order shall have the full 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 delinquent taxes are collected: provided, however, that all damages awarded and assessments made therefor, shall be by magisterial districts, each district bearingits own expenses in the enforcement of this act.

"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.

"Sec. 9. This act shall 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 this act 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 this act 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 the adoption of this act 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 this act, then the said court shall declare the same adopted for such county, or for any magisterial district in such county, requesting its adoption.

"Sec. 10. An emergency existing by reason of the fact that the season for infection is near at hand, this act shall be in force from its passage."

The cases were heard together by consent of parties, and the judgment under review by like consent was a judgment jointly in favor of the owners of the trees ordered to be destroyed.

The trees involved in the cases were ordered to be destroyed by the judgment under review, such judgment providing that the red cedars shall all be cut down, leaving stumps not over 4 inches high from the ground; those large enough therefor to be cut into fence posts 7 1/2 or 9 feet in length as the owners may direct; the posts to be closely trimmed; the laps or tops from said posts to be trimmed up and so much thereof as is over 2 inches in diameter to be cut into cordwood lengths; the brush to be hauled to some nearby point indicated by said owners and burned at such place or places; the posts and cordwood to be piled or ranked at convenient places nearby, as the property of said owners; said work to be done in a careful manner under the direction of the state entomologist all at the expense of the county fixed at a certain sum; and that the further sum of $200 be allowed the said owners as damages for injury to the land, to be paid to them as aforesaid before the work of cutting of the cedars shall proceed.

The owners raise no question in the cases with respect to the amount of the damages and expenses allowed but do assail the validity of the statute as aforesaid.

The material facts are referred to in the opinion below.

Curry & Curry, of Staunton, C. W. Bennick, of Newmarket, and C. B. Guyer, of Strasburg, for plaintiffs in error.

John R. Saunders, Atty. Gen., Ward & Larrick, of Winchester, and Tavenner & Bauserman, of Woodstock, for defendant in error.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The following questions raised by the assignments of error will be disposed of in their order as stated below:

1. Is the act approved March 4, 1914 (Acts 1914, p. 49 et seq.), commonly called the "Cedar Rust Law, " valid as enacted under the police power of the state for the protection of the public interest, as distinguished from the protection of private...

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