Miller Vs. Schoene

Miller v. Schoene, 276 U.S. 272 (1928) , outlines the approval and destruction of uncompensated cedar trees that were hosts to a fungus. Under the Cedar Rust Act of Virginia, Va. Acts 1914, c. 36, as amended by Va. Acts 1920, c. 260, it is declared to be unlawful for any person to "own, plant or keep alive and standing" on his premises any red cedar tree which is or may be the source or "host plant" of the communicable plant disease known as cedar rust, and any such tree growing within a certain radius of any apple orchard is declared to be a public nuisance. Both in the circuit court and the Supreme Court of Appeals, the plaintiff in error challenged the constitutionality of the statute under the due process clause of the Fourteenth Amendment.

Miller v. Schoene approved the uncompensated destruction of cedar trees that were alternate hosts to a fungus that damaged apples but not cedars. Supreme Court Justice Harlan F. Stone's opinion noted that deciding for either cedar or apple growers would amount to action by the state. Scholars have claimed that Miller marked the demise of the public/private distinction in constitutional law. This article presents historical evidence to the contrary. A widely-accepted standard--higher commercial value--commonly decided whose interests should prevail in such controversies. The analysis also shows that moral hazard explains why cedar owners were denied just compensation, which orchardists had originally been willing to tax themselves to pay. The state was under the necessity of making a choice between the preservation of one class of property and that of another wherever both existed in dangerous proximity. Thus, the Court held that the reasonable exercise of state power, controlled by considerations of social policy, did not involve any denial of due process, giving legislators and judges a non-legal baseline for the protection of the apple orchards.

The public/private distinction is fundamental for defining a wide range of socio-legal issues. In the intimate sphere of reproduction, for example, legal conflicts have emerged between the states, supporting the fetal rights of pregnant women who assert their rights to privacy. Roe v. Wade, 410 U.S. 113, (1976), affirmed abortion as a right to privacy, on the other, affirmed the right to protect the potential for human life. State supreme courts have gone to great lengths to require pregnant women to undergo cesarean sections, take medication, anything to prevent miscarriages. Protecting reproduction for future wealth and survival represents a public/private distinction in constitutional law. Roe v. Wade, correctly displays the states role and without undermining the due process, helps the state create protection. In Virginia, the apple orchards needed the states protection from the nuisance of red cedars.

In Virginia, a preference for apples over cedars protects their reproduction for future wealth and survival of the apple orchards. The argument stated that most cedars are wild trees that grew in untended fields, so cutting down the cedars often created value on the land, benefitting both parties. The cutting was done without benefit of the law, which was intended mainly to deal with holdouts. The plaintiff, Dr. Casper Otto Miller, was a 1914 member of the Virginia House of Delegates that adopted the cedar rust act under which his trees were later cut. Dr. Miller and 88 others voted 88-0, successfully moving to amend the act.

The 1914 cedar rust act in Virginia was written by apple growers; hence the debate about the act as well as the language of the statue shows that orchardists were willing to compensate those few cedar owners, like Dr. Miller for the removal of his cedars. Dr. Miller valued his red cedars for ornamental purposes, thus being compensated appropriately for the cedars seems just.

Cutting the red cedars was financed by a special tax on apple orchards, and compensation for cedar owners was to be financed exclusively from this tax. Apple growers eventually bridled at this tax because of the moral hazard problem. Owners of red cedars who actually lost nothing from the cutting of their trees feigned injury in order to collect compensation. The litigation in Miller v. Schoene was the culmination of an effort by the apple industry to stop the hemorrhage of their taxes to undeserving claimants.

The plaintiff argued in error, the provision of the statue that the investigation of the locality shall be made upon the request of ten or more reputable freeholders of the country or magisterial district does not make it objectionable in subjecting private property to arbitrary or irresponsible action of private citizens. Eubank v. Richmond, 226 U.S. 137, distinguished the decision, regardless whether the case was within the statue is made by the State Entomologist and subject to judicial review.

Mr. Justice Stone, acting under the Cedar Rust Act of Virginia, ordered the plaintiffs in error to cut down a large number of ornamental red cedar trees growing on their property, as a means of preventing the communication of a rust or plant disease with which they were infected to the apple orchards in the vicinity. The plaintiffs in error appealed from the order to the circuit court of Shenandoah county which, after a hearing and a consideration of evidence, affirmed the order and allowed to plaintiffs in error $100 to cover the expense of removal of