Lemon v. Rumsev

• Decision Date: 26 November 1929
• Docket Number: (No. 6509.)
• Citation: 108 W.Va. 242
• Parties: Sue M. Lemon v. W. E. Rumsev, State Entomologist
• Court: West Virginia Supreme Court

108 W.Va. 242

Sue M. Lemon

v.W. E. Rumsev, State Entomologist

(No. 6509.)

Supreme Court of Appeals of West Virginia.

Submitted November 12, 1929.

Decided November 26, 1929.

1. Agriculture Statute Providing for Control and Eradication

of Apple Rust Held Constitutional (Acts 1925, c. 84)

Chapter 84, Acts 1925, providing for the control and eradication of apple rust, held constitutional, (p. 245.)

(Constitutional Law, 12 C. J. § 390, p. 890, n. 44.)

2. Constitutional Law Failure of Statute Relating to Eradi-

cation of Apple Rust to Provide for Hearing Before Destruction of Trees Constituting Host of Apple Rust Held Not to Make it Unconstitutional (Acts 1925, c. 84-).

Failure of the above act to provide for a hearing before the destruction of red cedar trees, which are the source of or constitute the host plant of the apple rust, does not render it unconstitutional, (p. 245.)

(Constitutional Law, 12 C. J. § 390, p. 890, N. 44.)

3. Agriculture "Freeholders" as Used in Statute Providing

for eradication of Apple Rust, Applies to Corporations Owning Land.

The term "freeholders" as used in the act, applies to corporations which own land. (p. 248.)

(Constitutional Law, 12 C. J. § 390, p. 890, N. 44.)

4. Constitutional Law Legislative Declaration of Fact, if

Not Arbitrary, is Final.

A legislative declaration of fact, if not arbitrary, is final, (p. 246.)

(Constitutional Law, 12 C. J. § 390, p. 890, N. 44.)

5. Statutes Constitutional Requirement That Statute Em-

brace Only One Object, Expressed in Title, is Not Violated When Several Provisions Are Reasonably Necessary to Accomplish Single Object of Act (CoTist. art. 6, § 30).

When the title of a legislative enactment embraces but one object, and the several provisions of the act are but means to the accomplishment of that object and are reasonably necessary thereto, section 30, Article 6 of the Constitution is not violated, (p. 247.)

(Statutes, 36 Cyc, p. 1022, n. 1.)

6. Nuisance Nuisance is Not Justified by Existence of Similar

Nuisance in Same Locality.

A nuisance is not justified by the existence of a similar nuisance in the same locality, (p. 249.)

(Nuisances, 46, C. J, § 671, N. 60.)

(Note: Parenthetical references, by Editors, C. J. Cyc. Not part of Syllabi.)

Appeal from Circuit Court, Jefferson County.

Suit by Sue M. Lemon against W. E. Rumsey, State Entomologist, and others. From an adverse decree, plaintiff appeals.

Affirmed.

A. C. Mclntire and Morton & Snyder, for appellant.

Howard B. Lee, Attorney General, B. Dennis Steed, Assistant Attorney General, F. S. Tavenner and Kilmer & Byrer, for appellees.

Hatcher, Judge:

Chapter 84, Acts of the Legislature of 1925, is entitled "An act providing for the control and eradication of the plant disease commonly known as 'apple rust' in the several counties of the State." The act contains the following provisions: Any red cedar tree growing within a radius of three miles of an apple orchard is a public nuisance; upon the request in writing of ten or more reputable freeholders of any county, the state entomologist shall ascertain if any red cedar tree in the locality is the source of or the host plant for the disease commonly known as "rust of the apple"; if he finds a cedar so infected and it constitutes a menace to the health of an apple orchard within the prescribed area, he shall require in writing the owner of the cedar to destroy it, stating briefly the facts which necessitate its destruction and calling attention to the law under which the requirement is made; upon the failure of the owner to comply with the order, the state entomologist shall cause the tree to be cut down and destroyed at once; infected ornamental red cedars may be treated if, in the judgment of the entomologist, it is practical to do so and they are rendered harmless; notice may be served on the owner in the manner provided by law for service of like process; the necessary expense of the entomologist in cutting the tree is to be paid by the county court; the entomologist is empowered to enter any public or private premises for the purposes of executing the provisions of the act and any person who shall hinder or obstruct him shall be fined; an owner aggrieved by the destruction of cedar trees may appeal to the circuit court, which shall order payment of damages, if any, to be made out of the county fund; and the orchard owners shall reimburse the county for any damages so paid.

The plaintiff owns a tract of about ten acres on the outskirts of Shepherdstown, West Virginia, unimproved but attractive for home sites, upon which were some five hundred cedar trees. In 1925 and 1927 petitions were filed with the state entomologist requesting that he investigate the cedar trees in the neighborhood of the orchards owned by the petitioners. One of such orchards is within three miles of the plaintiff's property. The entomologist took no immediate action as to her property, because of lack of funds and of official engagements elsewhere. On January 29, 1929, he did investigate her property, and determined that her trees were red cedars and were infected with rust. Three days later he served notice upon her directing that she cut and destroy the cedar trees upon her property within five days. She did not do so. On February 4, 1929, his assistants entered her property, and had cut about 164 of the trees when stopped by a temporary injunction. After a hearing the circuit court dissolved the injunction. The plaintiff appeals from that decision, questioning (1) the constitutionality of the act; (2) the sufficiency of the petitions and the notice; and (3) the propriety of the procedure.

(1) The act is modeled closely after a similar act in Virginia, which has been held constitutional not only by the Virginia court but. by the federal courts. See Bowman v. State Entomologist, 128 Va. 351, 12 A. L. R. 1121; Miller v. State Entomologist, 146 Va. 175; Miller v. Schoene (Va. State Entomologist), 276 U. S. 272; Kelleher v. Schoene, 14 Fed. (2nd) 341; Kelleher v. French, 22 Fed. (2nd) 341. Similar legislation has been generally upheld. Batch v. Glenn, 85 Kan. 735, 43 L. R. A. (N. S.) 1080, Ann. Cases, 1913A, 406; County of Los Angeles v. Spencer, 126 Cal. 670, 77 Am. St. Rep. 217; Colvill v. Fox, 51 Mont. 72, L. R. A. 1915F, 894; Board of Agriculture v. Tanzman, 140 La. 756, L. R. A. 1917C, 894, Ann. Cases 1917E, 217; Ex parte Hawley, 22 S. D. 23, 15 L. R. A. (N. S.) 138; Cooley's Constitutional Limitations (8th Ed.), p. 1334. "The authorities leave no room for doubt", says 20 R. C. L., p. 412, sec. 29, "that pests of various sorts may constitute nuisances, and that the legislature as a consequence has power to provide for their abatement." So well established is this legislative right that we see no useful purpose in elaborating here the principles supporting it. Reference may be had therefor to the authorities cited, which are generally accessible to the legal profession.

The Virginia act provides for an appeal to the circuit court by the landowner from the order of the state entomologist requiring the destruction of cedar trees. The West Virginia statute has no such provision. Counsel for plaintiff contend that lack of such a provision clearly differentiates our statute from that of Virginia, and deprives a land owner of his property without a judicial hearing. Counsel overlook a fact which our legislature undoubtedly had in mind, that courts of equity are always open to prevent an unwarranted invasion of property rights such as might arise under this act. Witness this very proceeding. Why then provide a forum when one already exists? The Virginia statute gives the circuit court authority "to pass upon all questions involved" and to determine the amount of damages incurred by the landowner. A court of equity has the inherent authority to pass on all the questions involved in such cases, except that of damages. Our act provides a method by which an owner may secure compensation after the destruction of his trees. Besides, it is generally established that a state may authorize the summary abatement of a nuisance without judicial process or proceeding. This power was recognized at common law. 20 R. C. L., p. 487, sec. 100; 46 C. J., p. 755, sec. 357. "The destruction of the infected trees by order of a public official after due inspection is a remedy which, however severe, is one appropriate to the end in view, and may be properly enforced without any preliminary judicial inquiry." State v. Main, 69 Conn. 123, 137. Consequently due process of law is not denied by our Act.

In Bowman v. State Entomologist, supra, it was found that the destruction of red cedar trees infected with the apple rust was "absolutely necessary to prevent the extinction of the apple industry'' in the vicinity of the cedars. In Miller v. State Entomologist it was found that cedars so infected were "the deadly enemy of certain very valuable commercial apples; so deadly that one or the other must go." Here the evidence shows that about 33% of the apple varieties are immune to the rust, and that while the trees and the fruit of the susceptible varieties are materially reduced in size, the trees are not killed and. the fruit is not entirely ruined. Consequently, counsel for plaintiff contend that while the proof in the Virginia cases demonstrated infected cedars to be a nuisance, the evidence here does not do so; and that the declaration of our legislature to that effect does not prevent the courts from determining that fact. They cite Lawton v. Steele, 152 U. S. 133, 140, and other authorities holding that a legislature may not declare that to be a nuisance which is clearly not so. This is true, for such a declaration would be arbitrary. The fiat in our act that a red cedar tree within three miles of an apple orchard is a public nuisance, was meant to apply only when such orchards contain a variety of apples susceptible to the rust disease. This is apparent not only from the general purpose of the act...