April, '12] HUNTER: KANSAS NURSERY LAW 209 

 The opinion of the court was dehvered by 



PORTER, J.: In this suit the appellant challenges the validity of chapter 386 

 of the Session Laws of 1907, as amended by chapter 27 of the Session Laws of 1909, 

 creating the Entomological Commission and providing for the extermination of 

 San Jose scale. Appellant is the owner of a large orchard of apple and peach trees, 

 grapes and other fruit and sued to enjoin the defendants from entering upon his 

 premises for the purpose of inspecting, spraying and destroj-ing the fruit trees and 

 vines and from causing the expenses incurred in the performance of such services 

 to be taxed against his property. In their answer appellees admitted that they were 

 about to inspect, and, if necessary, destroy the trees, vines and other shrubbery 

 on appellant's premises and that the costs and expenses incurred by them would be 

 taxed against his property: they alleged that appellant's orchard is infected with 

 San Jose scale and asked that he be enjoined from interfering in any manner with 

 the work of the commission in exterminating the same. On the trial the court found 

 the acts of the appellees justified and enjoined appellant from interfering with the 

 proceedings. From this judgment he appeals. 



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 nurserj' busmess within the state, to be appointed by the 

 governor. The purpose of the act is the suppression and extermination of San 

 Jose scale and other injurious insect pests and plant diseases. In order to accom- 

 plish 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 upon such insects or plant diseases. In case the officers mentioned or 

 their employees shall find such insects or diseases to exist thej' are required to mark 

 in some conspicuous way all trees, vines, shrubs, or plants so infested, and to give 

 notice in writing to the o\\Tier, tenant, or person in charge of the premises, of the 

 condition thereof. The act then provides that if the owner or person in charge 

 shall not witliin ten 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. The act of 1907 provided that the expenses of such extermination or treat- 

 ment, properl}^ certified by the commission, should be collected by the county attor- 

 ney of the county where such premises are located, who was directed to account 

 therefor to the commission. The legislature of 1909 amended the act so as to provide 

 that the expense incurred in inspecting, treating, and exterminating such insect 

 pests should be paid by the owner of the premises within a certain time after the 

 services were performed, in default of which it should be taxed against the property 

 and collected in the same manner as delinquent taxes. The amendment, so far as 

 it relates to the present controversj^, reads as follows: 



"The necessary expense thereof shall be paid by the owTier or owners of the real 

 estate from which said infestation has been removed in pursuance of this act. The 

 state entomologist or hi^ deputy- shall serve or cause to be sensed upon said o^Tier 

 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 treas- 

 urer of the county wherein said real estate is located within twenty days from the 

 6er\ace 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 



