Miller v. State Entomologist.*

• Decision Date: 18 November 1926
• Citation: 135 S.E. 813
• Parties: MILLER et al. v. STATE ENTOMOLOGIST.*
• Court: Virginia Supreme Court

135 S.E. 813

MILLER et al.

v.STATE ENTOMOLOGIST.^*

Supreme Court of Appeals of Virginia.

Nov. 18, 1926.

Campbell, J., dissenting in part.

Error to Circuit Court, Shenandoah County.

Proceeding under the cedar rust statute to cause the destruction by the State Entomologist of certain red cedar trees on the lands of one Miller and others. To review the judgment rendered, defendants bring error. Affirmed.

C. W. Bennick, of Newmarket, D. O. De-chert, of Harrisonburg, and Randolph Harrison, of Lynchburg, for plaintiffs in error.

F. S. Tavenner, of Woodstock, for defendant in error.

BURKS, J. This is a proceeding under the "cedar rust" statute, to cause the destruction, as a nuisance, of certain red cedar trees on the lands of the plaintiffs in error. Sections 1, 2, and 9 of the original act (Acts 1914, p. 49), carried into the Code assections 885, 886, and 893, are given in the margin.¹

The cedars sought to be destroyed grow wild, mostly on grazing lands, and are not propagated for commercial purposes. They vary in height from mere sprouts to shrubs or trees six or eight feet high and some of them much higher. The smaller ones are used to some extent for "Christmas trees." The chief use of those of sufficient size is for fence posts. Their utility or commercial value is comparatively small. The evidence tends to show that the land is more valuable without them than with them; but, when properly trimmed and kept in order, they possess, or are supposed to possess, a scenic value. They are, however, the deadly enemy of certain very valuable commercial apples; so deadly that one or the other must go, as no practical method has been discovered whereby the cedar may be treated so as to render it innocuous. Many millions of dollars have been invested in commercial apple orchards in the state, and the industry has been developed to such an extent that the state stands third or fourth in the United States in the production of commercial apples. This development has been especially marked in the Valley and Piedmont sections, and it is said that the Valley alone had a normal annual production of about a million and a quarter barrels. These orchards, while especially valuable to the owners, furnish employment to a large number of laborers and others.

It appears from the testimony that the cedars in question are within one mile of several orchards. Other facts will appear from the discussion which follows.

The constitutional validity of this statute was assailed in Bowman v. State Entomologist, 128 Va. 351, 105 S. E. 141, 12 A. L. R. 1136. In a very lucid and exhaustive opinion by the late Judge Sims, every objection raised to the statute was satisfactorily answered, and the statute was upheld and enforced. The same objections and some others have been raised in the instant case. So far as the facts of the two cases are the same, the Bowman Case stands until reversed. All objections to the constitutionality of the statute are concluded by the Bowman Case, whether brought to the attention of the court in that case or not. This must be so of necessity, for, if a statute is unconstitutional for any reason, it is a void statute, and—

"whenever a statute is enforced by a judgment or decree of a court, it is a judicial determination that the statute is a valid enactment and is free from all constitutional objections. If unconstitutional for any reason, whether assigned or not, the statute is void." Portsmouth v. Weiss (June, 1926) 133 S. E. 781.

We must therefore regard the assignments of error on constitutional grounds as an application to the court to reconsider its holding in the Bowman Case. This we have done most carefully, but see no reason for changing the conclusion reached in that case. Our views and the reasons therefor are so fullyset out in the opinion in that case that we deem it unnecessary to do more than to refer to the opinion and say that we adhere to it. The constitutional validity of the statute has also been upheld in Kelleher v. Schoene, 14 F. (2d) 341, by the United States District Court for the Western District of Virginia.

In the petition for the writ of error in the instant case, the assignments of error are summarized as follows:

"(1) The failure of the trial court to hold that the provisions of said statute are invalid, because in conflict with the first clause of the Fourteenth Amendment of the Constitution of the United States, in that by an enforcement of said statute petitioners' property will be taken without due process of law.

"(2) The failure of the trial court to hold said statute invalid, as opposed to said clause of said amendment, because its enforcement will deny to petitioners the equal protection of the laws, and will contravene the principle inhering in government, forbidding the taking or destroying of private property, not for public use, but for the promotion of the welfare of individuals.

"(3) The failure of the trial court to hold that said statute is invalid because of vagueness and indefiniteness.

"(4) The failure of the trial court to hold that said statute, because of the provision thereof whereby it is to become operative as to any particular locality, by virtue of the action of ten or more freeholders, is void, because in conflict with said provision of the" Fourteenth Amendment of the federal Constitution, guaranteeing to all citizens the equal protection of the laws, and inhibiting the taking or destruction of property without due process of law.

"(5) In holding that there is in force in Lee magisterial district of Shenandoah county any law requiring the destruction of any cedar trees. "(6) In holding that, even if the said statute is in force in said county and district, all of the red cedar trees on petitioners' land are subject to destruction, whereas, in any event, no red cedar trees other than such as are or may be source, harbor, or host plants of cedar rust are included in the denunciation of the statute.

"(7) In rejecting the evidence tendered by petitioners, tending to prove that, by reason of the destruction of said cedar trees (if the same be destroyed), petitioners will sustain damage to the extent of from $5,000 to $7,000 because of the consequent diminution of the market value of petitioners' land.

"(8) In holding that the statute does not require that compensation shall be made to petitioners for any diminution in the market value of their land resulting from such destruction of the cedar trees thereon; or, if the statute does Hot provide for such compensation, in holding that the same is not void as in contravention of said first clause of the Fourteenth Amendment of the Constitution of the United States."

Assignments of error 1, 2, 4, ' and 8, involving the constitutional questions aforesaid, are fully covered by the decision in the Bowman Case, and are overruled.

It is said in the petition for the writ of error that the statute offends the equal protection clause of the federal Constitution, in that it cannot be put into operation except upon the initiative of ten freeholders, and that the court's attention was not called to this feature of unconstitutionality, nor was the case of Eubank v. City of Richmond, 226 U. S. 137, 33 S. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1014B, 102, referred to in that connection in the Bowman Case. As we have just pointed out, this is wholly immaterial. The statute is the same now in this respect as it was when the Bowman Case was decided. But, even if our attention had been drawn to the present argument, our conclusion would have been the same. The same point was made in the Kelleher Case, supra, and we so fully approve the opinion of the court on that subject that we cannot do better than quote what is there said:

"It is contended that the statute is void because of the provision (section 886) in respect to the written request of ten freeholders to the entomologist. Without so deciding, it may be assumed that counsel for plaintiff are right in saying that such a request is an absolute prerequisite to a notice from the entomologist to the landowner to destroy any cedar tree. However, it does not seem to us to follow that the statute either denies due process of law or the equal protection of the laws. The freeholders are not given any power themselves to order the destruction of cedar trees, nor can they control the entomologist in the performance of his duties, or the circuit court of the county in the exercise of its functions.

"The power given is only that of putting the entomologist under the duty of making or having made an examination. The difference between this power and a power to condemn or power to require the entomologist to condemn, is most obvious. Hence we cannot concur in the conclusion of counsel for the plaintiff that the plaintiff's rights are determined by irresponsible individuals. So long as a request is not signed by ten freeholders, the owner of cedar trees remains undisturbed. And the signing of a request does not determine anything except that at least ten freeholders desire that an official search for infected cedar trees be made in some designated territory. The provision in question tends to protect the owners of cedar trees from possible official overzealousness, as well as the orchardists from the ultimate payment of damages and expenses, incurred by the possibly unnecessary destruction of cedar trees. While the provision seems to us wise and beneficent, it is at least harmless in respect to the owners of cedar trees. If it had been omitted, the remainder of the statute being as it is, infected cedar trees, within two miles of an orchard, in a district which had duly adopted the law, would be quite as liable to destruction as they are now. And, if the statute without the provision as to the written request would be constitutional, we are entirely unable to see wily the provision in question makes the statute unconstitutional.

"This statute differs so widely from the...