85 Kan. 735 | Kan. | 1911
The opinion of the court was delivered by
In this suit the appellant challenges the validity of chapter 386 of the Laws of 1907, as amended by chapter 27 of the Laws of 1909 (Gen. Stat. 1909,
Chapter 386 of the Laws of 1907 creates the entomological commission, to consist of the secretary of the State Board of Agriculture, the secretary of the Kansas State Horticultural Society, the professor of entomology of the University of Kansas, the professor of •entomology at the State Agricultural College, and a nurseryman actively engaged in the nursery business within the state, to be appointed by the governor. The purpose of the act is the suppression and extermination of San José scale and other injurious insect pests and plant diseases. In order to accomplish such purpose the entomologists, their assistants and employees, are authorized to enter upon the premises of any private individual and inspect, destroy, treat or experiment npon such insects or plant diseases. In case the officers mentioned or their employees shall find such insects or diseases to exist, they are required to mark in ■some conspicuous way all trees, vines, shrubs or plants
“The necessary expense thereof shall be paid by the owner or owners of the real estate from which said infestation has been removed in pursuance of this act. The state entomologist or his deputy shall serve or cause to be served upon said owner or any one in. possession and in charge of said real estate, a notice, stating the amount of said charge, and further stating that if said charge be not paid to the county treasurer of-the county wherein said real estate is located within twenty days from the date of the service of said notice, that the same will become a lien upon said real estate.. Copy of said notice, together with the proof of service, shall be at once filed with the county clerk, and if said amount is not paid within the time therein stated, said county clerk shall spread the same upon the tax roll prepared by him and said amount shall become a lien against said real estate and be collected as other taxes are collected, and said real estate shall be sold for nonpayment of said taxes the same as now or hereafter may be provided by law for sale of real estate for delinquent taxes. Should the owner of said real;*739 estate not pay said charges within the stated time, the same shall be presented to the board of county commissioners by the county clerk and by them allowed and paid out of the general fund of said county by the county .treasurer, and when said amount is collected as taxes it shall be paid into the general fund of said! county. The cost .of eradication or treatment of such infestation, as above stated, shall be paid to the county treasurer, to whom the county clerk' shall certify all amounts due as reported to him by the entomologist in charge. The county treasurer shall forward to the state treasurer on the first of each month all amounts thus received. These amounts shall be paid into the general fund of the entomological commission.” (Laws 1909, ch. 27, § 1, Gen. Stat. 1909, § 8732.) •
There was ample evidence to warrant the finding that appellant’s orchard is infested with San José scale. It is conceded that the appellees were attempting to follow the provisions of the statute. They and their employees had gone upon the premises of the appellant and had marked certain trees and shrubs for déstruction, and had marked others for treatment by spraying; they had given the appellant due notice in writing, ordering him within ten days thereafter to treat and destroy the pest under the rules and regulations of the commission. Upon his failure to comply with the order, the commission was about to cause the work to be done and the expense thereof charged against appellant’s property.
The appellant asserts that the act of 1907, as. amended by that of 1909, is unconstitutional. Generally stated, his contentions are: that the law deprives, him of his property without due process of law, and. therefore violates the fourteenth amendment to the federal constitution; that it deprives him of the right h> a jury trial, in violation of section 5 of the bill of- rights; that it attempts to confer judicial power upon the commission and its employees, and to give them authority to determine the amount of taxes which shall be assessed against the appellant’s property, without notice or opportunity to contest the amount thereof; that it
In the exercise of this power the legislature may be justified in excluding property dangerous to the property of citizens of the state, as, for example, animals having infectious or contagious diseases. The police power is said to be inherent in government, but can only be exercised by authority of legislative enactment. It is for the legislature to determine what laws are needful and appropriate to promote the public welfare and to prevent the infliction of public injury. So long as the legislature, in attempting to exercise this power, does not violate any of the provisions of the organic law or encroach upon some power vested in congress by the federal constitution, the exercise of its discretion is not subject to review by the courts. (Matter of Application of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636.) In the language of Justice Gray, in Blair & Hutchinson & Smith v. Forehand, 100 Mass. 136:
“All rights of property are held subject to such reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the constitution of the commonwealth, may think necessary for the preventing of injuries to the rights of others and the security of the public health and welfare. In the exercise of this power, the legislature may not only provide that certain kinds of property (either absolutely, or when held in such a manner or under such circumstances as to be injurious, dangerous or noxious) may be seized and confiscated*742 upon legal process after notice and hearing; but may also, when necessary to insure public safety, authorize them to be summarily destroyed by the municipal authorities without previous notice to the owner — as in the familiar cases of pulling down buildings to prevent the spreading of a conflagration or the impending fall of the buildings themselves, throwing overboard decaying or infected food, or abating other nuisances dangerous to health.” (p. 139.)
It cannot be doubted that the legislature possessed the power to declare that the existence of San' José scale, which is well known to be injurious and dangerous to the. fruit -industry of the state, constitutes a nuisance. The evidence in the case at bar shows beyond question that this particular pest is so prevalent in Sedgwick county as to become a source of great danger to the fruit growers in the community, as.well as to 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 well calculated to accomplish the purpose of the legislature, and therefore a proper exercise of the police power. Similar laws have been upheld in other states. Thus, in County of Los Angeles 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. Abeel v. Clark, 84 Cal. 226; Train v. Boston Disinfecting Co., 144 Mass. 523, 59 Am. Rep. 113.” (p. 673.)
The law in question here is of the same character as are the quarantine laws pertaining to Texas cattle
“And there are other cases where it becomes necessary for the public authorities to interfere with the control of individuals of their property, and even to destroy it, where the owners themselves have fully observed all their duties to their fellows and to the state, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take, use, or destroy the private property of individuals to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity. Here the individual is in no degree in fault, but his interest must yield to that ‘necessity’ which ‘knows no law.’ ” (Cooley, Const. Limitations, 7th ed., p. 878.)
Cases sometimes arise where the exigencies of the situation require private property to be' destroyed immediately in order to prevent the spread of pestilence or some other calamity, and where, under all the circumstances, the loss which the individual suffers is so inconsiderable in comparison with the benefit to the public that in the opinion of the legislature he is regarded as fully compensated by his individual share in the benefit accruing to the public. Other cases will arise where it is apparent that if no action is taken by the state the property of the individual will be destroyed or rendered of little or no value. In Shafford v. Brown, 49 Wash. 307, 95 Pac. 270, the supreme court of Washington had under consideration a statute giving power to a county fruit inspector to destroy fruit infected with insects, and held that the owner of such fruit had 'no cause of action against the inspector for damages for its destruction for the reason that it had no value.
It is true that in some of the laws providing for the
In 1888 the legislature enacted a law providing for the appointment of sheep inspectors and prescribing-their duties. (Laws 1883, ch. 144, Gen. Stat. 1909, §§ 9094-9100.) The act, which seems never to have been assailed as invalid, authorizes such inspectors to order the owner of sheep afflicted with certain diseases to cause the same to be dipped or otherwise treated, and when the owner fails to comply with such order he is subject to a fine which is made a lien upon the sheep. There is a further provision that the inspector shall then cause the sheep to be treated and the costs and expenses shall be charged against the sheep and made a lien thereon, which shall be collected in any court of competent jurisdiction.
A similar act was passed by the legislature of 1909 for the suppression of tuberculosis in cattle, which authorizes the owner of any animals found to be so infected to deliver them to the live-stock sanitary com- • missioner and to receive from him an order on the board of county commissioners of the county in which the diseased animals are located for fifty per cent of' the appraised value of such animals as if they had not been diseased, provided that no county shall recognize such order unless such animals have been owned in . the county at least 120 days prior to the time the tuberculin test was administered to them. (Laws 1909, ch. 169, Gen. Stat. 1909, §§ 9164-9171.)
It rests wholly with the legislature to determine-' whether in the exercise of its power of police regu
There is no force in the obj ection that the statute is repugnant to the fourteenth amendment. That clause of the federal constitution does not limit the subjects upon which the police power of the state may be exerted, .nor was it designed to interfere with the power of the state to enact laws for the preservation of the health, morals, peace, or welfare of the people. (Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205; Minneapolis Railway Co. v. Beckwith, 129 U. S. 26, 32 L. Ed. 585; Prohibitory Amendment Cases, 24 Kan. 700.)
In Mugler v. Kansas, supra, it was contended that the state, by prohibiting, in its constitution and laws, the manufacture or sale of intoxicating liquors for general use as a beverage, deprived the citizen of his property in violation of the fourteenth amendment. The court held that a prohibition simply upon the use of property for purposes declared by the legislature to be injurious to the health, morals, or safety of the
“Nor can legislation of that character come within the fourteenth amendment, in any ca.se, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, consistently with the existence and safety of organized society, can not be — burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated,, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent holder.” (123 U. S. 669.) •
The statute is not invalid because it delegates to the commission the power to declare the existence of conditions which call into operation the provisions of the statute. The legislature of the state may declare that
“The legislature of the state may declare that a nuisance, which is such in fact, and may create a commission with power to determine whether the conditions defined by the act exist.” (Cooley, Const. Limitations, 7th ed., p. 882, note 1.)
In determining whether the conditions exist which the legislature declares constitute a nuisance, that is, whether a particular orchard, or some portion thereof, is so infested with insect pests as to require treatment or extermination, the commission exercises some discretion which is in a limited sense judicial, but no more so than the discretion generally exercised in the enforcement of police regulations. It is like the discretion exercised by inspectors of health, food, grain, milk, live stock, by the various state boards and commissions, and by city officers charged with the enforcement of police regulations, which, in order to be effective, often require prompt and summary execution, and which from their nature call for the exercise of more or less discretion in the officers whose duty it is to make them effective.
The same objection was urged against the act creating the board of railroad commissioners and acts supplementary thereto. It was held that although the'
“A statute designed to protect and promote the horticultural interests of the state, which declares that all places, orchards, etc., infected with the pests mentioned in the statute are public nuisances, and which act is a proper exercise of the police power, is not unconstitutional on the ground that it confers judicial powers upon the horticultural commissioners, where a commissioner, in determining whether any particular place is a nuisance, must necessarily exercise some discretion which, in a strict sense, is judicial in its nature.” (77 Am. St. Rep., heádnote.)
Nor is the act invalid because no procedure or method is provided by which the owner may contest the necessity for the destruction of his property. The exigencies of the situation and the conditions which the legislature had in mind require prompt and summary action. The fruit industry of a large portion of the state might be jeopardized by delays resulting from
It is urged that the act is unconstitutional because it authorizes the cost of the proceeding to be charged against the property of the owner without notice to him or opportunity to question the amount thereof. The act, however, requires notice in writing to be served upon the owner, stating the amount of expense incurred by the commission and notifying him that unless the same be paid within twenty days the same will be taxed against his property. He therefore has notice before any lien is created upon his property, and before it can be taken or sold. Having this notice, he is relegated to his common-law remedies. If he believes the amount charged is greater than it should be, he has ample time to determine what is the proper charge, tender the same to the county clerk, and enjoin in any court of competent jurisdiction the collection of a greater amount. It has been held by the supreme court of the
But we do not regard the cost of the proceedings as. a tax, although the act refers to it as a tax to “be collected as other taxes are collected.” It is merely the-expense of abating a nuisance, and there are various ways which the legislature might have adopted for its. collection. They might have provided for its collection by an action against the owner, after his neglect or refusal, upon due noticé, to ábate the nuisance, following ■ the method provided for collecting the cost and expenses of inspecting and treating diseased sheep (Laws-1883, ch. 144, § 4, Gen. Stat. 1909, § 9097) ; or, the method prescribed where infected cattle are taken by order of the live-stock sanitary commissioner under section 9136 of the General Statutes of 1909, which provides that all the costs and expenses of taking,-holding■ and caring for such animals shall be paid by the owner, and if not so paid, the animals shall be advertised and sold in the same manner as personal property on execution.
Instead of adopting either of these methods the legislature provided that the cost of abating the nuisance-should be paid by the owner of the property, and in default of such payment the board of county commission- - ers should pay it, so that the work of the commission should not be delayed; and then gave the county a lien upon the real estate for the indebtedness due it from, the owner and authorized the county to enforce such lien by the method employed in the levying and collect
Since the expense incurred by the commission is not a tax the act is not repugnant to the provision of the constitution which requires a uniform and equal rate of assessment and taxation.
The act being constitutional and valid, the court properly denied the appellant the relief prayed for, and the appellees were entitled to a permanent injunction against his interfering with the execution of the law.
The judgment is affirmed.