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MILLER V. SCHOENE, 276 U. S. 272 (1928)

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U.S. Supreme Court

Miller v. Schoene, 276 U.S. 272 (1928)

Miller v. Schoene


Argued January 20, 1928

Decided February 20, 1928

276 U.S. 272


1. An Act of Virginia provides, compulsorily, for the cutting down of red cedar trees within two miles of any apple orchard when found upon official investigation to be the source or "host plant" of the communicable plant disease called cedar rust and to "constitute a menace to the health of any apple orchard in said locality." The owner is allowed a judicial review of the order of the State Entomologist directing such cutting, and may use the trees when cut, but no compensation is allowed him for their value standing or for decrease in market value of the realty caused by their destruction. The evidence shows that the life cycle of the parasite has two phases, passed alternately on the cedar and the apple; that it is without effect on the value of the cedar, but destructive of the leaves and fruit of the apple; that it is communicable by spores from the cedar to the apple over a radius of at least two miles; that the only practicable method of controlling it is destruction of all red cedar trees within that distance of apple orchards, and that the economic value of cedars in Virginia is small as compared with that of the apple orchards.

Held, that the Act is consistent with the Due Process Clause of the Fourteenth Amendment. P. 276 U. S. 277.

2. When forced to make the choice, the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. P 276 U. S. 279.

3. Preferment of the public interest, even to the extent of destroying property interests of the individual, is one of the distinguishing characteristics of every exercise of the police power which affects property. P. 276 U. S. 280. chanroblesvirtualawlibrary

Page 276 U. S. 273

4. The provision of the statute that the investigation of the locality shall be made upon the request of ten or more reputable freeholders of the county or magisterial district does not make it objectionable as subjecting private property to arbitrary or irresponsible action of private citizens, since the decision whether the facts revealed bring the case within the statute is made by the State Entomologist, and subject to judicial review. Eubank v. Richmond, 226 U. S. 137, distinguished. P. 276 U. S. 280.

5. Since no penalty can be incurred or disadvantage suffered under the statute in advance of the judicial ascertainment of its applicability, and since it was held applicable in this case by the state court, the objection to its vagueness is without weight. P. 276 U. S. 281.

146 Va. 175 affirmed.

Error to a judgment of the Supreme Court of Appeals of Virginia, which affirmed a judgment affirming on appeal an order of the State Entomologist, Schoene, requiring the plaintiffs to cut down a large number of ornamental red cedar trees growing on their property. The judgment allowed them $100 to cover the expense of removing the cedars. chanroblesvirtualawlibrary

Page 276 U. S. 277

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