(105 S.E.) Shenandoah | 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.

The said owners of said trees will be here- heard and decided. The court in regular or inafter referred to as the owners.

(105 S.E.)

As is said in 6 R. C. L. p. 189:

"The police power of the state, never having been exactly defined or circumscribed by fixed limits, is considered as being capable of development and modication within certain limits, so that the powers of government control may be adequate to meet changing social, economic and political conditions. It is very broad and comprehensive and is liberally understood and applied. The changing conditions of society may make it imperative for the state to exercise additional powers and the welfare of society may demand that the state should assume such powers."

tion of property employed in certain industries is regarded, under certain circumstances as within the legitimate exercise of the police power of the state. Among those industries are those which supply a public demand for food of all wholesome sorts.

It is for the public interest that the public demand for all wholesome foods may be supplied in reasonable quantities; and hence it is for the public interest that established industries, materially contributing to such supply, be not extinguished or seriously impaired in their efficiency by the spread of disease of any kind. And whatever constitutes a real

And at page 206 of the same authority it is menace to such supply may be legitimately

said:

declared by statute to be a public nuisance and abated as such, although it may not have been such a nuisance, or abatable as such, at common law. While the evil to be contended against is in such case not of the same magnitude as the menace of disease to human beings, the principle involved in the exercise of the police power to combat the evil is pre

cisely the same in both instances.

Now the public welfare, or the public good, Accordingly, we find that statutes have or the public interest (all synonymous terms), been passed by Congress and in a great many is concerned not only with the safety, health, of the states (including Virginia), in the exand morals of the people, but also, under cer-ercise of the police power, for preventing the tain circumstances, as is universally admit- spread and for the eradication of disease ted, in the protection of property. among animals. These statutes are, for the As said in 1 Lewis on Em. Domain (3d most part, based, not on the existence of any Ed.) § 6: menace to human health by reason of cattle diseases, but upon their effect upon the animal industry itself and the consequent effect upon the supply of the public demand for animal food. And such statutes have been everywhere upheld as enacted in the legitimate exercise of the police power, by the Supreme Court and by the courts of the states, whenever the question has arisen. See note to 26 L. R. A. 638, and note to 43 L. R. A. (N. S.)

*

"Every property owner is bound to so use and enjoy his own as not to interfere with the general welfare of the community in which he lives. It is the enforcement of this * duty which pertains to the police power of the state so far as the exercise of that power affects private property. Whatever restraints the Legislature imposes upon the use and enjoyment of property within the reason and principle of this duty, the owner must submit to, and for any inconvenience or loss which he sustains thereby he is without remedy. It is a regulation and not a taking, an exercise of police power, and not of eminent domain."

And again (Id. § 247):

""To destroy property because it is a public nuisance is not to appropriate it to public use, but to prevent any use of it by the owner, and to put an end to its existence, because it could not be used consistently with the maxim, sic utere tuo ut alienum non lædas.'"

Just what circumstances will affect property with a public interest so that the Legislature, for the protection of property affected with a public interest, may declare the continued existence of certain property under certain circumstances a public nuisance, it would perhaps be impossible to define so as to embrace all cases. At any rate, the courts have not as yet attempted such a definition, and we shall not embark upon that undertaking. Indeed, for the decision of the case before us we do not have to go very far afield to find the principle upon which the protec

1066.

And acting upon the very same principle several of the states, including Virginia, have enacted crop pest statutes for preventing the spread and for the eradication of diseases among agricultural growths of different sorts, including orchards.

Minnesota has a statute providing for the destruction of noxious weeds, as liable to be come detrimental to agriculture. It defines such weeds, among which is wild mustard and it declares such weeds to be a public nuisance. The statute prohibits owners of land within certain limitations from permitting such weeds going to seed. The board of su pervisors is charged with the duty of enforc ing the statute. The board is required to give notice to the owner, agent or occupant of the time in which such weeds are to be de stroyed, and it is made the duty of the board to go upon the land and destroy the weeds when the owner neglects to do so within the time specified in the notice. The failure of the owner to comply with the notice and his allowing the weeds to go to seed is made misdemeanor. In State v. Boehm, 92 Minr

374, 100 N. W. 95, the validity of this statute | beyond question that this particular pest is so was involved; one of the questions raised by the assignments of error being whether the public interest was concerned in the destruction of the noxious weeds so as to render the statute valid as enacted in the exercise of the police power. The court said:

*

*

"It is clear from an inspection of the entire act, excerpts from which have been quoted, that the Legislature intended to adopt a reasonable plan for the eradication of noxious weeds from lands owned by private parties. While the police power is most frequently exercised for the preservation of the public safety, public health, and public morals, still its use is not limited to such purposes. Such enactments have been upheld involving a variety of subjects. (Citing cases.) "This being an agricultural state, the enactment falls within the principles declared in the cases cited, and is but a reasonable exercise of the police power for the general public welfare."

*

prevalent in Sedgewick county as to become a source of great danger to the fruit growers in the community, as well as those in other sections of the state. The statute, viewed in the light of the evidence and aided by facts which common experience and observance teach respecting the danger to an important industry of the state from the presence of insect pests, must be regarded as appropriate and * * * a proper exercise of the police power. Similar laws have been upheld in other states. Thus, in Los Angeles County v. Spencer, 126 Cal. 670, 59 Pac. 202, 77 Am. St. Rep. 217, it was said: 'It is known that the existence of the fruit industry in the state depends upon the suppression and destruction of the pest mentioned in the statute. The act in question is, therefore, a proper exercise of the police power which the Legislature has, under section 1 of article 19 of the Constitution, to subject private property to such reasonable restraints and burdens as will secure and maintain the general welfare and prosperity of the state.'

In the Los Angeles County Case the stat

To the same effect is the case of Wedemeyer v. Crouch, 68 Wash. 14, 122 Pac. 366, 43 L. R. A. (N. S.) 1090, in which the Wash-ute of California involved was designed to ington statutes involved provided that certain thistles and mustard and other weeds, liable to become a pest and detrimental to agricultural interests, were "declared to be noxious weeds," and the statutes contain similar provisions to those in the Minnesota statute aforesaid.

protect and promote the horticultural industry of the state, and declared that all places, orchards, etc., infected with the pests mentioned in the statute are public nuisances, and charged the horticultural commissioners with the duty of enforcing the statute by abating the nuisance, at the expense of the owner of the infected property.

See to same effect, Riverside County v. Butcher, 133 Cal. 324, 65 Pac. 745, involving a later similar statute to that involved in the Los Angeles County Case.

In State v. Nelson, 22 S. D. 23, 115 N. W. 93, 15 L. R. A. (N. S.) 138, a statute of South Dakota is involved which regulates the nursery business. In the opinion of the court it is said:

calculated to prevent the spread of diseases The power to prescribe regulations among plants cannot be less ample than the power to prescribe regulations calculated to prevent the spread of diseases among domestic animals."

In Balch v. Glenn, 85 Kan. 735, 119 Pac. 67, 43 L. R. A. (N. S.) 1080, Ann. Cas. 1913A, 406, the statute of Kansas is involved which has for its object the extermination of the San Jose scale and other orchard pests. This statute created the entomological commission of the state, composed in part of certain entomologists, who under the statute are charged with the duty of enforcing it. They are authorized to go upon the premises of any private individual and inspect, destroy, treat, or experiment upon the San Jose scale, or other injurious insect pests, or plant diseases. In case they find such insects or diseases to exist, they are required to mark in some conspicuous way all trees, vines, shrubs or plants so infected, and to give notice in writing to the owner, tenant, or person in charge of the In State v. Main, 69 Conn. 123, 37 Atl. 80, premises of the condition thereof. The act 36 L. R. A. 623, 61 Am. St. Rep. 30, is inthen provides that, if the owner or person involved the Connecticut statute (similar to the charge shall not within 10 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 at the expense of the owner. The court held the enactment of the statute a proper exercise of the police power, since it was designed to protect and promote the horticultural interests of the state. On this subject this is said in the opinion of the court:

"Ít cannot be doubted that the Legislature possessed the power to declare that the existence of the San José scale, which is well known to be injurious and dangerous to the fruit industry of the state, constitutes a nui

statute in Virginia, Acts 1889-90, p. 145, requiring the destruction of peach trees infected with the disease known as "Yellows"); and it is therein held that the enactment of such statute was a proper exercise of the police power unless the courts can see that there could be no possibiltiy of any apprehension of substantial danger of the spread of the disease to other peach orchards by allowing the infected trees to live.

496, L. R. A. 1915F, 895, is involved the In Colvill v. Fox, 51 Mont. 72, 149 Pac. statute of Montana authorizing the destruction by the inspector of fruit pests of apples found to be infected with fruit scab, a

(105 S.E.)

municated to and infect fruit trees of other, 43 S. E. 558, 61 L. R. A. 125, 99 Am. St. orchardists. The court held the statute a Rep. 870; Bristol, etc., Co. v. Bristol, 97 Va. valid exercise of the police power on the part 304, 33 S. E. 588, 75 Am. St. Rep. 783; Jusof the state, and in the opinion of the court tice v. Commonwealth, 81 Va. 212; Richmond this is said: v. Caruthers, 103 Va. 774, 50 S. E. 265, 70 L. R. A. 1005, 2 Ann. Cas. 495; Jeremy Imp. Co. v. Commonwealth, 106 Va. 482, 56 S. E. 224; 29 Cyc. 1152, 1153; 12 C. J. 933; 8 Cyc. 873, note; Young's Case, 101 Va. 853, 45 S. E. 327; Eubank v. Richmond, 110 Va. 740, 67 S. E. 376, 19 Ann. Cas. 186; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

"The mere fact that other orchardists may profit by the destruction of this menace to their fruit trees does not convert the act of destruction from its character as one for the public welfare into one for the private use or benefit of such people."

In Louisiana State Board v. Tanzmann, 140 La. 756, 73 South. 854, L. R. A. 1917C, 894, Ann. Cas. 1917E, 217, is involved the statute of Louisiana authorizing the destruction of orange trees affected by the disease known as "citrus canker," a contagious orange tree disease liable to be communicated to other orange groves in its vicinity and in the state at large. The statute was upheld as a valid exercise of the police power of the state.

[4] (b) It is true, as said by the Supreme Court in Lawton v. Steele, supra (152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385):

"The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts."

[5] However, as appears from the authorities just cited, a large discretion is vested in the Legislature to determine what the interests of the public require and also as to what is necessary for the protection of such interests, and every possible presumption is to be indulged in favor of the validity of a statute.

And in the case before us the circumstances shown in evidence are: That red cedar trees are numerous in the vicinity of those involved in the instant cases and throughout Piedmont and the Valley of Virginia. That such cedar trees are generally infected with the disease of cedar rust throughout those sections of the state. That in such sections the growing of apples, of certain varieties which are especially susceptible to said disease and for which there is a large public demand, both in those sections and elsewhere, is a large and important industry. That, reAs said in 1 Lewis on Em. Domain, § 249: gardless of the scientific opinion of the origin "The Supreme Court of the United States, of the said disease in the past, at the time which is the final arbiter upon these questions, the statute aforesaid was enacted and when says: "The validity of a police regulation, the cases before us arose, it was prevalent whether established directly by the state or in said sections. That the disease moves by some public body acting under its sanction, "from the cedar tree to the apple tree in the must depend upon the circumstances of each spring, and from the apple tree to the cedar case and the character of the regulation, wheth-tree in the summer and fall," certainly for a er arbitrary or reasonable, and whether really distance of one mile, and perhaps more, dedesigned to accomplish a legitimate public pur-pendent upon the direction and velocity of pose. If the means employed have no the winds, by which the "spores" are borne real substantial relation to the public objects which government may legally accomplish, if and are sown broadcast, resulting in the perthey are arbitrary and unreasonably beyond the petuation and the spread of the disease. necessities of the case, the judiciary will disre- That these two kinds of trees being alternatgard mere forms and interfere for the protec- ing host plants, the spores can infect either tion of rights injuriously affected by such il-kind on which they light, and, this being true, legal action.' "

See the following authorities cited for the owners to the same effect, or not in conflict with the two paragraphs next above, namely: 8 Cyc. 872; Laugel v. Bushnell, 197 III. 20, 63 N. E. 1086, 58 L. R. A. 268; Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315; State v. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408; Bonnet v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061; State v. Goodwill and Same v. Minor, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621, 25 Am. St. Rep. 863; Mugler v. Kansas City, 123 U. S. 661, 8 Sup. Ct. 273, 31 L. Ed. at page

an infected orchard may in turn infect cedar trees other than those which caused the original infection, and those newly infected cedars may in turn infect still other orchards, and that this condition can go on throughout the whole district or county if the orchards and cedar trees were located with respect to each other within the radius of infection. That, to a large extent at least, the orchards and cedar trees, where the latter have not been destroyed, are so located with respect to each other in the magisterial district and county in which the cedar trees in question in these cases are located, and that the same is true generally speaking throughout the Piedmont and Valley sections of the state.