214 JOURNAL OF ECONOMIC ENTOMOLOGY [Vol. 5 



not disturbed in the control or use of his property for lawful purposes nor restricted 

 in his right to dispose of it, but its use is forbidden only for certain purposes prejudicial 

 to the public interests. The court, however, went much further and held that 

 "The destruction, in the exercise of the police power of the State of property used, 

 in violation of law, in maintaining a public nuisance, is not taking of property for 

 public use, and does not deprive the owner of it without due process of law" (Syl.) 

 Upon this proposition the late Justice Harlan, in the opinion used this language: 



"Nor can legislation of that character come within the Fourteenth Amendment 

 in any case, 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, cannot 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 

 no.xious use of their property, to inflict injury upon the community. The exercise 

 of the police power by the destruction of property which is in itself a public nuisance, 

 or the prohibition of its use m a particular way, whereby its value becomes depre- 

 ciated, is very different from taking property for public use, or from depriving a person 

 of his property wdthout due process of law. In the one case, a nuisance oniy is 

 abated; in the other, unoffending property is taken away from an innocent holder." 

 (123 U. S., p. 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 to be a nuisance which is 

 detrimental to the health, morals, peace, or welfare of its citizens, and may confer 

 power upon local boards or tribunals to exercise the police power of the state when 

 in the judgment of such tribunals the conditions exist which the legislature has 

 declared constitute such nuisance. Similar power has been conferred upon cities 

 of the first class to remove certain nuisances, and to tax the costs of the proceedings 

 upon the property where the nuisances are located. (Gen. Stat. 1909, Sec. 918.) 

 Like authority is conferred upon the sanitary live stock commissioner to determine 

 that domestic cattle or live stock are infested with certain contagious diseases. (Gen. 

 Stat. 1909, Sec. 9136.) 



The legislature of the State may declare that a nuisance, which is such in fact, and 

 may create a commission with a power to determine whether the conditions defined 

 by the act exist." (Cooley, Constitutional Limitations, 7th ed., p. 882, n. 1.) 



In determining whether the conditions exist which the legislature declares consti- 

 tutes 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 wdth the enforce- 

 ment 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 com- 

 missioners and acts supplementary thereto. It was held that although the board 

 is required to exercise judgment and discretion and to make orders for the regulation 

 and control of railroads and other common carriers, the act does not confer upon 



