April, '12] HUNTER: KANSAS NURSERY LAW 211 



thereby. Property taken or destroyed for the purpose of abating a nuisance or 

 to prevent the spreading of a pestilence is not taken for public use. All private 

 property is held subject to such reasonable restraints and burdens as in the opinion 

 of the legislature will secure and maintain the general welfare and prosperity of 

 the state. It is held subject to the obligation that it shall not be used so as to affect 

 injuriously the rights of the community. It belongs to the legislative branch of 

 the government "to exert what are known as police powers of the state, and to deter- 

 mine primarily what measures are appropriate, or needful, for the protection of the 

 public morals, the public health, or the public safety." (Muglcr v. Kansas, 123 

 U. S. 623-661; 31 L. ed. 205. Mo. Pac. Rly. Co. v. Finley, 38 Kan. 550, 16 

 Pac. 951.) 



In the exercise of this power the legislature may be justified in excluding property 

 dangerous to the property of the citizens of the state, as, for example, animals having 

 infectious or contagious diseases. The police power is said to be inherent in govern- 

 ment, but can only be exercised by authority of legislative enactment. It is for 

 the legislature to determine what laws are needed and appropriate to promote the 

 public welfare and to prevent the infliction of public injury. So long as the legis- 

 lature, in attempting to exercise this power, does not violate any of the pro^^sions 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 pre- 

 venting 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 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. 139-140.) 



It cannot be doubted that the legislature possessed the power to declare that the 

 existence of the San Jose 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 observation 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 ques- 

 tion 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 



