Kelleher v. Schoene

• Decision Date: 22 July 1926
• Citation: 14 F.2d 341
• Parties: KELLEHER v. SCHOENE, State Entomologist.
• Court: U.S. District Court — Western District of Virginia

14 F.2d 341 (1926)

KELLEHER v.SCHOENE, State Entomologist.

District Court, W. D. Virginia.

July 22, 1926.

Randolph Harrison, of Lynchburg, Va.(Harrison, Long & Williams, of Lynchburg, Va., on the brief), D. O. Dechert, of Harrisonburg, Va., and M. L. Walton, Jr., of Woodstock, Va., for plaintiff.

F. S. Tavenner, of Woodstock, Va., and Geo. N. Conrad, of Harrisonburg, Va., for defendant.

Before PARKER, Circuit Judge, and McDOWELL and GRONER, District Judges.

McDOWELL, District Judge.

This is a suit in equity, commenced January 18, 1926, in which the plaintiff seeks to have the state entomologist enjoined from enforcing the Virginia Cedar Rust Law.

The Statute.

The original statute of March 4, 1914, c. 36 (Va. Acts 1914, p. 49), was copied into the Code of 1919, with the addition merely of section headings and section numbers.Unfortunately some of the questions which must be discussed are of such nature that it is advisable to here insert the provisions of the statute verbatim.

"Sec. 885.Red Cedar Trees; Declared Public Nuisance, When.— 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.(1914, p. 49.)

"Sec. 886.Investigations by State Entomologist; When Trees to be Destroyed; Notice to Owner.— 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 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 prescribed in such notice by the state entomologist cut down and destroy said cedar trees.(Id.)

"Sec. 887.When Certain Trees May be Treated to Render Them Harmless.— If, however, in the judgment of the state entomologist it is practical to treat any such cedar tree or trees, especially 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 writing by the state entomologist and a copy placed in the hands of said owner.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.(Id.)

"Sec. 888.Upon Whom Notice Served.— 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 of the state in the manner 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.(Id.)

"Sec. 889.When State Entomologist to Destroy Trees.— 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 fund of the county and to be reimbursed as provided in section eight hundred and ninety-two.(Id.)

"Sec. 890.Entry upon Premises by State Entomologist; Penalty for Hindering or Obstructing Him.— The state entomologist, his assistant or employees 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.(Id.)

"Sec. 891.Appeal from Order of State Entomologist; Damages Paid by County Treasurer.— 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 eight hundred 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.(Id.)

"Sec. 892.Levy upon Apple Orchards to Reimburse County.— 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 eight hundred and eighty-nine, 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 hereof.

"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 bearing its own expenses in the enforcement of this chapter.

"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.(Id.)

"Sec. 893.How the Eight Preceding Sections Put in Force in Counties and Magisterial Districts.— The eight preceding sections 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 the same operative unless the circuit court of such county by an order duly entered shall ratify and...