276 U.S. 272 (1928)
The Virginia legislature enacted the Cedar Rust Act in 1914, later amended in 1920 and codified as Va. Code §§ 885 to 893.1 The statute declares it unlawful to own, plant, or keep alive any red cedar tree that serves as a host for cedar rust within two miles of an apple orchard.2 It authorizes the state entomologist to order destruction of such trees after investigation.3
Acting under the statute, the state entomologist ordered the plaintiffs in error to cut down a large number of ornamental red cedar trees on their Shenandoah County property.4 The plaintiffs appealed the order to the Circuit Court of Shenandoah County.5 After a hearing and consideration of evidence, the circuit court affirmed the order and awarded the plaintiffs $100 for removal expenses while providing no compensation for the value of the standing trees or any resulting decrease in the market value of the realty.6 The plaintiffs retained only the right to use the felled trees.7
The plaintiffs then appealed to the Supreme Court of Appeals of Virginia, which affirmed the judgment in Miller v. State Entomologist, 146 Va. 175.8 In both state courts the plaintiffs challenged the statute under the Due Process Clause of the Fourteenth Amendment.9 The case reached the United States Supreme Court on writ of error under Jud. Code § 237(a).10
Evidence established that cedar rust is an infectious fungoid organism whose life cycle alternates between red cedar and apple trees.11 It spreads by spores over a radius of at least two miles, damaging apple fruit and foliage while leaving the cedars themselves unaffected in value.12 The only practicable method of control is destruction of red cedar trees within two miles of apple orchards.13 Apple growing is one of Virginia's principal agricultural pursuits, with many millions of dollars invested in orchards that employ a large portion of the population and support related railroad and cold storage facilities.14 Red cedars are indigenous, not cultivated commercially on any substantial scale, and hold comparatively small value throughout the state.15
The statute requires a written request from ten or more reputable freeholders of a county or magisterial district to trigger the entomologist's preliminary investigation.16 If the entomologist finds the trees constitute a menace, he must direct the owner in writing to destroy them.17 Section 7 provides for appeal to the circuit court, which may hear objections and pass upon all questions involved.18
Whether the Virginia Cedar Rust Act violates the Due Process Clause of the Fourteenth Amendment by authorizing the destruction of red cedar trees without compensation?19
When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property to save another which, in the judgment of the legislature, is of greater value to the public.20 Where the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.21
No. The established facts demonstrate that apple growing constitutes one of Virginia's principal agricultural pursuits with many millions of dollars invested in orchards employing a large portion of the population and supporting related facilities.22 Red cedars hold comparatively small value and are not cultivated commercially on any substantial scale.23 The evidence established that cedar rust spreads over a radius of at least two miles, damaging apple fruit and foliage.24 This makes destruction of the cedars the only practicable method of control.25 The statute therefore authorizes the entomologist to order destruction without compensation for the trees' value or any decrease in realty market value beyond the $100 removal expense awarded by the circuit court.26
This exercise of police power to resolve the unavoidable choice between the two classes of property does not deny due process under precedents recognizing that the state may destroy one interest to preserve another of greater public value.27
The Virginia Cedar Rust Act does not violate the Due Process Clause of the Fourteenth Amendment.28
Whether the statute's provision allowing ten or more freeholders to request an investigation improperly delegates authority to private citizens?29
The function of the property owners there is in no way comparable to that of the ten or more reputable freeholders in the Cedar Rust Act.30 They do not determine the action of the state entomologist. They merely request him to conduct an investigation.31 In him is vested the discretion to decide, after investigation, whether or not conditions are such that the other provisions of the statute shall be brought into action; and his determination is subject to judicial review.32 The property of plaintiffs in error is not subjected to the possibly arbitrary and irresponsible action of a group of private citizens.33
No. Under the established facts the statute requires only a written request from ten or more reputable freeholders to trigger the entomologist's preliminary investigation of whether cedar trees constitute a menace within two miles of an apple orchard.34 The entomologist alone makes the affirmative findings and issues the destruction order.35 Section 7 then authorizes appeal to the circuit court for a full hearing on all objections and questions involved.36 This mechanism differs fundamentally from an ordinance that left no discretion to officials and allowed two-thirds of abutting owners to fix building lines binding on others without further review.37
The entomologist's determination remains subject to judicial oversight.38 This prevents any improper delegation.39
The statute's provision allowing ten or more freeholders to request an investigation does not improperly delegate authority to private citizens.40
Whether the statute is unconstitutionally vague?41
The objection of plaintiffs in error to the vagueness of the statute is without weight. The state court has held it to be applicable and that is enough when, by the statute, no penalty can be incurred or disadvantage suffered in advance of the judicial ascertainment of its applicability.42
No. The established facts show that the plaintiffs received written notice from the entomologist.43 They appealed to the circuit court for a hearing and consideration of evidence.44 They obtained further review by the Supreme Court of Appeals of Virginia before any destruction occurred.45 The statute imposes no penalty or disadvantage until after these judicial proceedings determine its applicability to the specific trees.46
Because the state courts have already held the statute applicable to the plaintiffs' property, the vagueness challenge fails.47
The statute is not unconstitutionally vague.48