April, '12] HUNTER: KANSAS NURSERY LAW 213 



the purpose of affording protection to the live stock industry of the state it might 

 authorize the destruction of private property, making provision in some cases for 

 full compensation to the owner thereof, in other cases for partial compensation, 

 and still in others for no compensation. The act for the protection of domestic 

 animals is not before us and its constitutionality is therefore not in question. Its 

 validity, however, has not, so far as we are aware, been attacked upon any of the 

 grounds urged against the statute now under consideration. 



In 1883 the legislature enacted a law providing for the appointment of sheep 

 inspectors and prescribing their duties. (Laws 1883, Ch. 144, Gen. Stat. 1909, Sees. 

 9094-9100.) The act, which seems never to have been assailed as invalid, author- 

 izes 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 com- 

 ply 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 tubercu- 

 losis in cattle which authorizes the o\\Tier of any animals found to be so infected 

 to deUver them to the sanitary Uve stock commissioner 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 covmty shall recognize such order 

 unless such animals have been owTied in the county at least 120 days prior to the 

 time the tubercuUn test was administered to them. (Laws 1909, ch. 169.) 



It rests whollj' with the legislature to determine whether in the exercise of its 

 power of pohce regulation the individual whose property is destroyed shaU receive 

 compensation therefor. In the statute of which appellant complains no such pro- 

 vision appears. Doubtless the legislature considered, what is most obvious, that 

 no serious hardship is hkely to result to the owner of property through the enforce- 

 ment of its provisions. No tree or shrub is to be destroyed until upon inspection 

 it is found to be so seriouslj' infested with insect pests as to be of no practical value. 

 On the other hand, if its condition is found to be such that it can be preserved by 

 spraying or other treatment, and the owner, after due notice thereof, refuses to give 

 it proper treatment, the state steps in and for the purpose of preventing the spread of 

 the infestation administers the necessary treatment and frequently preserves the 

 property from ultimate destruction. The owner by being compelled to pay the 

 necessary expense incurred in the treatment and preservation of his property is 

 required to pay only what is justly due the state. 



There is no force in the objection that the statute is repugnant to the 14th amend- 

 ment. 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 "mth 

 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 14th amend- 

 ment. The court held that a prohibition simply upon the use of propertj- for pur- 

 poses declared by the legislature to be injurious to the health, morals, or safety of 

 the community, "cannot in any just sense be deemed a taking or an appropriation 

 of property for the public benefit" (p. 668-669) for the reason that the owner is 



