The herald., 1897-11-27
THOSE INSECT PESTS
The Case Of Spencer on Appeal to the
Supreme Court

The decision Of Judge Van Dyke in the
case Of Los Angeles county against W.
d. Spencer and others, wherein the
court held that the acts Of the legislature
establishing boards of horticulture and
providing that such boards or their Of
ficers might go upon the property of a
private person and eradicate insect
pests were unconstitutional, has been
appealed from. The brief, on behalf of
the county, was filed by Deputy District
Attorney James yesterday. and in 1t
some strong arguments are put forward
In opposition to the standpoint Of vision
taken by Judge Van Dyke.
OF course 1t goes without saying that
Il the lower court is sustained the work
Of the board Of horticultural commits
B10nerB will be at an end. In appellants
bflef stress islaid upon the very points
which Judge Van Dyke touched upon
most lightly, II at all--the police power
inhering in bodies delegated to perform
certain functions by the legislature.
The court held that the acts Of the
legislature creating the horticultural
boards were unconstitutional because
an attempt il made to place in the hands
of such boards judicial power to de-
clare what shall constitute public nui-
sance, and so infringes upon the judicial
prerogative. The position taken by the
district attorney is that there is no del
egation of judicial power and that such
acts as those involved in the case at bar
are clearly within the police power Of
the state. 1t may be conceded that the
legislature has a right to declare what
shall constitute nuisance. It has pro-
vided that when the horticultural board
or its inspectors or quarantine officers
discover trees, fruit, vines, etc. ,infest-
ed with such injurious pests they shall
notify the owner to destroy them and
abate the nuisance. If the owner of the
property upon which the nuisance is To-
Gated fails to so do. the nuisance is to
be abated by the horticultural commits
sion.
mo judicial power Is conferred upon
the commission" says the district at
torney; their determination that the
insects were injurious is not conclusive,
for under the allegations of the COM
plant the defendant can put in issue all
of these matters; he is not without his
day in court. II a penalty had been at
tached upon the failure of the property
owner to eradicate the pests at the in
stance of the commission, which was to
be enforced by the commission, then 1t
might be said that judicial power was
delegated. No fine or penalty is pro-
vided for. The property owner cannot
be fined for maintaining nuisance
without trial in court by a Jury IL he
desires one.
1.-THE field Of police power is not cir
cumscribed by narrow and restricted
limits. Cooley on Statutory Limita-
tions. page 7o6, says: The police power
Of state extends to the protection Of
lives, limbs, health, comfort and quiet
Of nl1 persons. and the protection of all
property within the state. BY this
general police power persons and prop
erty are subjected to all kinds of re-
straints and burdens. in order to secure
the general comfort, health and pros
perity Of the state; of the perfect right
In the legislature to do which no ques-
tton ever was or upon acknowledged
general principles ever can be made. so
far as natural persons are concerned
again. police power is not subject
to any definite limitations but Is CO.
extensive with the necessities Of the case
ana tho safeguards of public interest.
(canfleld vs. United States, 1877 U. s.,
SIS; II Sup. Ct. Rep. S64.)"
"There Is no limitation, constitutional
or statutory, which compels notice to
be served or given within a stated or par
ticular time in order that the right OF
lien, In such cases as this. may be effect
uated. When no particular time for
notice IL prescribed. and yet the giving
OF notice is provided for, the only quail
ity thatthe time Of notice must possess
- that 1t be reasonable. The statute
here says (Stat. 1891. page 1851 that the
property owner shall be notified to erad-
lcate the insect pests with which his
trees, vines. ETC., are found to be in
sested within q specified time. A ten
day notice was given in this case to the |
defendant, Every person is presumed to |
Hhow ths lew. Upon receiving notice