April, '12] HUNTER: KANSAS NURSERY LAW 215 



the board either executive or judicial powers. (The State v. Railway Co., 76 Kan. 

 467.) 92 Pac. 606. To the same effect is Schaake v. Dolley, ante, p. 598, 118 Pac. 

 80, where it was held that the granting or refusing of an application for a bank 

 charter by the charter board calls for the exercise of discretion and that the act 

 creating the board is not invalid because it provides that the board shall refuse a 

 bank charter if upon examination it shall determine against the pubUc necessity of 

 the business in the community in which it is sought to establish such a bank. The 

 statutes construed in both of the foregoing cases were passed by the legislature un- 

 der the police power of the state. The precise question was before the supreme 

 court of California in County of Los Angeles v. Spencer, 126 Cal. 670, 59 Pac. 202 

 77 Am. St. 217, where a statute almost identical with this was construed, and it was 

 held that 



"A statute designed to protect and promote the horticultural interests of the 

 state, which declares that all places, orchards, etc., infested with the pests mentioned 

 in the statute are public nuisances, and which act is a proper exercise of the pohce 

 power, is not unconstitutional on the ground that it confers judicial powers upon 

 the horticultural commissioners, where a commissioner, in determining whether any 

 particular place is a nuisance, must necessarily exercise some discretion which, in 

 a strict sense, is judicial in its nature." 77 Am. St. Rep., Headnote. (Syl. par. 3.) 

 Nor is the act invalid because no procedure or method is pro\aded by which the 

 owTier may contest the necessity for the destruction of his property. The exigencies 

 of the situation and the conditions which the legislature had in mind require prompt 

 and siimmary action. The fruit industry of a large portion of the state might be 

 jeopardized by delays resulting from almost any method or procedure which could 

 be devised by which the owner could havea hearing as to the necessity for the destruc- 

 tion of his property. If his orchard is infested with the dangerous pests which the 

 statute was designed to exterminate the legislature declares the condition to consti- 

 tute a nuisance which the interests of the state requke shall be abated promptly 

 and summarily. In order that private property might not be liable to destruction 

 under the provisions of the statute, except where the conditions actually exist, 

 the legislature provided that the commission shall be composed of persons possessing 

 a scientific and practical knowledge of horticulture. And when those persons have 

 determined that an orchard or some portion of it is infested with such insect pests 

 it would seem that the question is one about which there could be little room for 

 reasonable minds to differ. Under the police power the legislature may, when 

 necessary, authorize the seizure and confiscation or destruction of private property 

 without pre\'ious notice to the owner. (Blair & Hutchinson & Smith v. Forehand, 

 100 Mass. 136.) 



It is urged that the act is unconstitutional because it authorizes the cost of the 

 proceedings to be charged against the property of the owner without notice to him 

 or opportunity to question the amount thereof. The act, however, requires notice 

 in writing to be served upon the owTier stating the amount of expense incurred by 

 the commission and notifj-ing him that unless the same be paid ^sithm twenty days 

 the same v^ill be taxed against his property. He therefore has notice before any 

 lien is created upon his property, and before it can be taken or sold. Having this 

 notice he is relegated to his common-law remedies. If he believes the amount 

 charged is greater than it should be, he has ample time to determine what is the 

 proper charge, tender the same to the county clerk and enjoin in any court of com- 

 petent jurisdiction the collection of a greater amount. It has been held by the 

 Supreme Court of the United States that the phrase "due process of law"does not 

 necessaril}' mean a judicial proceeding. (McMillen v. Anderson, 95 U. S. 37-41.) 

 On the other hand it does not necessarily mean a special tribunal created for the 



