Miller v. Schoene

276 U.S. 272 (1928)

[In the 1920s, the state of Virginia had a large and prosperous apple industry. Red cedar trees could harbor a fungus that did not endanger the cedars but destroyed apple blooms and threatened the apple crop. While red cedars were sometimes used for lumber, they were generally of little economic value. Faced with danger to the apple crop, the Virginia legislature provided that infected cedar trees should be cut down.]

Mr. Justice Stone delivered the opinion of the Court.

Acting under the Cedar Rust Act of Virginia, the state entomologist, ordered the [Millers] 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 Virginia Circuit Court] affirmed the order and allowed [the Millers] $100 to cover the expense of removal of the cedars. Neither the judgment of the court nor the statute as interpreted allows compensation for the value of the standing cedars or the decrease in the market value of the realty caused by their destruction whether considered as ornamental trees or otherwise. But they save to [the Millers] the privilege of using the trees when felled. . . .

On the evidence we may accept the conclusion of the Supreme Court of Appeals that the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity. It would have been none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked. When forced to such a 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. It will not do to say that the case is merely one of a conflict of two private interests and that the misfortune of apple growers may not be shifted to cedar owners by ordering the destruction of their property; for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of the one interest over the other. And 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. Mugler v. Kansas (1887), Hadacheck v. Los Angeles (1915) [law barring operation of brick mill in residential area held not to be a taking]; Euclid v. Ambler Realty Co. (1926) [zoning regulation that diminished value of property held not to be a taking].

We need not weigh with nicety the question whether the infected cedars constitute a nuisance according to the common law; or whether they may be so declared by statute. For where, as here, the choice is unavoidable, we cannot say that its exercise, controlled by considerations of social policy which are not unreasonable, involves any denial of due process. The injury to property here is no more serious, nor the public interest less, than in Hadacheck v. Los Angeles. . . .

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In 1926, four years after Pennsylvania Coal, the Court first considered and upheld zoning laws in Euclid v. Ambler Realty Co. The Euclid Court declined to extend its Pennsylvania Coal holding to zoning, even though the zoning in Euclid caused a 75% decline in the market value of the zoned property. More than fifty years later, in Penn Central Transportation Co. v. New York (1978), the Court did extend its regulatory takings analysis to zoning.

In Penn Central, the Court held that landmark preservation, as a type of zoning, was not a taking based on the facts of that case, but might be in another setting. As interpreted in later cases, the Court established a three-factor test to decide if a regulation which did not deprive a landowner of substantially all value should be considered a taking: the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. In contrast, where a regulation deprives a landowner of virtually all the value of the property, the Court will apply a per se rule and find a taking.

The latter problem was addressed in Lucas v. South Carolina Coastal Council (1992). As you read Lucas, consider the methodology that the Court uses to determine whether this exercise of the police power is reasonable or unreasonable. Is Lucas consistent with Mugler v. Kansas (1887) or with Miller v. Schoene (1928)? Are the Justices consistent in their approaches to the importance of original understanding or history and tradition in the recent takings and substantive due process decisions? How does the majority approach square with Lochner v. New York (1905), United States v. Carolene Products (1938), and Williamson v. Lee Optical (1955)?