Shenandoah herald. [volume] (Woodstock, Va.) 1865-1974, 1925-09-18
CEDAR RUST
BACK AGAIN
Effort To Have Mt. Airy Trees Cut,
Again In Circuit Court


Like Banquo's ghost, Cedar Rust
will not down in Shenandoah Coun-
ty, and Daniel Kelleher, Washington
State banker and owner of Mt. Airy,
the splendid estate near Mt. Jackson,
is again defendant in an action
brought by the State entomologist.
This is the third time that Mr.. Kelle-
her has been hailed into Circuit Court
in connection with cedar cutting. In
the previous cases the State entomol
ogist discontinued the proceedings.
In the case at bar the defendant
has made application to the Circuit
Court for its removal to the United
States District Court on the ground
that he is a citizen of Washington
State. 1t is alleged in the petition
that the State entomoligst is attempt
ing to prevent removal to federal
jurisdiction by separate actions, none
of which involve an amount sufficient
for an appeal to the United States
Court
The progress of-the case will be
watched with interest.
Order Entered
+ On Thursday Judge Whiting en-
tered an order in the case, on the
petition of removal to the federal
court in which the court says:
4 'It is considered by the court:
+ Cd That this proceeding is one
by the State in the exercise of the
police power of the State, and sub
jeet to the exclusive authority of the
State: and
(2) That the proceeding by virtue
of the character of the relief sought
is one in which the State is party
and
CD That the petition for removal
fails to set forth claim of 100000
susceptible of proof under the provi-
sions of the act This court in the
many cases decided has always held
that under the statute, no compen-
sation is allowable for the value of
the cedar trees cut, that no property
is taken, and the only damage al
lowable is the trivial damage Incl
dent to the act of cutting, and in one
of the cases decided by the Supreme
Court of Appeals (the case of Bow
man V. Virginia State Entomologist)
on appeal from the Circuit Court of
Shenandoah County, the court in af-
firming the decision of the lower
court held CPS Va. 800 that
The statute involved in these
cases, and the judgment under re-
view in accordance with the sta
tute. allows compensation to own
ers, but not as matter of right
The validity of the statute must
be tested by the rules which would
be applicable if no such compen-
sation We're allowed by the sta
i tute'
i (4) That the matter is not suit
of civil nature involving the amount
of 100000. but special summary
proceeding for valid exercise of
the police power of the State, for the
general public welfare.
1t is therefore considered by the
court, for the said several reasons,
that the prayer of the petition for
removal of the said proceedings, and
I the signing of the order for removal
and approval of the bond be denied,
to each and all of the foregoing, the
defendant objected and excepted.
The defendant by counsel signify
ing his intention of causing the rec
ord to be certified to the District
Court of the United States for the
Western District of Virginia at Har-
risonburg, Notwithstanding the or
der of this court, it is ordered that
the matter be not proceeded with by
the Circuit Court of the county of
Shenandoah further during this term.
nor until further order entered in
this matter in the Circuit Court of
Shenandoah County, to each and all
of the foregoing defendant objected
and excepted