210 JOURNAL OF ECONOMIC ENTOMOLOGY [Vol. 5 



become a lien against said real estate and be collected as other taxes are collected, 

 and said real estate shall be sold for non-payment 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 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 countj^ clerk shall certify 

 all amounts due as reported to him by the entomologists 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 Entomologi- 

 cal Commission." (Laws 1909, ch. 27, Sec. 1, Gen. Stat. 1909, Sec. 8732.) 



There was ample evidence to warrant the finding that appellant's orchard is 

 infected with San Jose 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 destruction 

 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 uncon- 

 stitutional. Generally stated his contentions are, that the law deprives him of his 

 property without due process of law and therefore violates the 14th amendment 

 to the federal constitution; that it deprives him of the right to a jury trial in viola- 

 tion 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 violates section 1 of article 11 of 

 the constitution of Kansas requiring a uniform and equal rate of assessment and 

 taxation. Little if any attempt is made in the brief to argue these propositions 

 separately; but counsel for appellant urge the following specific objections to the 

 statute: (1) that there is no method of procedure or hearing provided by which 

 appellant's right to protest against the destruction of his property is preserved; 

 that the law delegates to the commission and its employees the power to mark trees 

 for destruction without a hearing or trial as to the necessity thereof; (2) that it 

 fails to prescribe any compensation for property destroyed, whether taken rightly 

 or wrongfully ; (3) that no notice or opportunity is provided by which the appellant 

 may contest the amount of the expenses which shall be taxed against his property. 

 Most of these objections rest upon what appears to be a failure to distinguish between 

 the exercise of the power of eminent domain and the exercise of the power of police 

 regulation. Many cases are cited where legislative enactments have been held 

 invalid on the ground that they provide for the taking of private property for public 

 use without compensation. These authorities have no application to the present 

 case. The courts have universally recognized the distinction between the two 

 powers. Under the exercise of the one private property cannot be taken either 

 for public or private use without compensation; in the exercise of the other the use 

 of property may be limited, or controlled, or the property itself destroyed without 

 any compensation therefor being made to the owner. It is no objection to the validity 

 of laws passed in the proper and lawful exercise of the police power that provision 

 is not made for compensation to the individual whose property may be affected 



