Miller v. Schoene,
276 U.S. 272 (1928)

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U.S. Supreme Court

Miller v. Schoene, 276 U.S. 272 (1928)

Miller v. Schoene


Argued January 20, 1928

Decided February 20, 1928

276 U.S. 272


1. An Act of Virginia provides, compulsorily, for the cutting down of red cedar trees within two miles of any apple orchard when found upon official investigation to be the source or "host plant" of the communicable plant disease called cedar rust and to "constitute a menace to the health of any apple orchard in said locality." The owner is allowed a judicial review of the order of the State Entomologist directing such cutting, and may use the trees when cut, but no compensation is allowed him for their value standing or for decrease in market value of the realty caused by their destruction. The evidence shows that the life cycle of the parasite has two phases, passed alternately on the cedar and the apple; that it is without effect on the value of the cedar, but destructive of the leaves and fruit of the apple; that it is communicable by spores from the cedar to the apple over a radius of at least two miles; that the only practicable method of controlling it is destruction of all red cedar trees within that distance of apple orchards, and that the economic value of cedars in Virginia is small as compared with that of the apple orchards.

Held, that the Act is consistent with the Due Process Clause of the Fourteenth Amendment. P. 276 U. S. 277.

2. When forced to make the choice, the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. P 276 U. S. 279.

3. Preferment of the public interest, even to the extent of destroying property interests of the individual, is one of the distinguishing characteristics of every exercise of the police power which affects property. P. 276 U. S. 280.

Page 276 U. S. 273

4. The provision of the statute that the investigation of the locality shall be made upon the request of ten or more reputable freeholders of the county or magisterial district does not make it objectionable as subjecting private property to arbitrary or irresponsible action of private citizens, since the decision whether the facts revealed bring the case within the statute is made by the State Entomologist, and subject to judicial review. Eubank v. Richmond, 226 U. S. 137, distinguished. P. 276 U. S. 280.

5. Since no penalty can be incurred or disadvantage suffered under the statute in advance of the judicial ascertainment of its applicability, and since it was held applicable in this case by the state court, the objection to its vagueness is without weight. P. 276 U. S. 281.

146 Va. 175 affirmed.

Error to a judgment of the Supreme Court of Appeals of Virginia, which affirmed a judgment affirming on appeal an order of the State Entomologist, Schoene, requiring the plaintiffs to cut down a large number of ornamental red cedar trees growing on their property. The judgment allowed them $100 to cover the expense of removing the cedars.

Page 276 U. S. 277

Primary Holding

There is no taking when the government destroys one type of property to protect another type of property that the government has identified as having greater value to the public.


Schoene, the state entomologist of Virginia, ordered property owners to cut down red cedar trees on their property that were infected with cedar rust. This disease destroys the fruit and leaves of the apple but does not directly affect the red cedars. However, its spores can travel up to two miles, and the apples could not be protected without destroying the red cedars. Virginia relied on apple growing as one of its most important agricultural business. The Cedar Rust Act, under which Schoene acted, thus was designed to protect apple orchards.

The state provided no compensation for destroying the red cedars. Miller and other property owners argued that this was a government taking of property that required compensation, but they were unsuccessful in the lower courts.



  • Harlan Fiske Stone (Author)
  • William Howard Taft
  • Oliver Wendell Holmes, Jr.
  • Willis Van Devanter
  • James Clark McReynolds
  • Pierce Butler
  • Louis Dembitz Brandeis
  • George Sutherland
  • Edward Terry Sanford

The state was forced to choose between one type of property and another that was closely situated to it. The legislature acted reasonably in determining that apples were more valuable to the state's interests than red cedars. The public interest strongly weighs in favor of making this choice, so the combination of a private interest and a public interest in favor of preserving the apples should outweigh the solely private interest in favor of preserving the red cedars. This exercise of the state police power is not an unconstitutional taking because the conflict between the private interests was unavoidable.

Case Commentary

The Court neglected to address whether there should have been compensation for a government taking, but it found that a taking was valid in this instance because there was a public purpose to intrude onto private property.

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