Opinion of the Court. 276 U.S. also that the provisions of the trust instrument for change or termination of the trust by Peter C. Brooks with the consent of one trustee created a power of appointment within the meaning of Mass. Acts 1909, c. 527, § 8, and that the nonexercise of the reserved power in Brooks' lifetime as well as the fact that the interest of the beneficiaries took effect "in possession or enjoyment" after his death within the meaning of Mass. Acts 1916, c. 268, § 1, required the imposition of the tax as of the date of his death upon the entire interest in the trust passing to the plaintiffs in error. This construction of the statutes by the state court we accept, Stebbins v. Riley, 268 U. S. 137; Chanler v. Kelsey, 205 U. S. 466, 477, as we do its construction of the trust deed. Nickel v. Cole, 256 U. S. 222, 225; Moffitt v. Kelly, 218 U. S. 400. The plaintiffs in error contend that as interpreted the statutes deprive them of property without due process because they are taxed on an interest they had already received before the enactment of the taxing acts. It is said that they had vested interests or remainders subject only to being divested by the exercise of the reserved power, which never happened; that as their remainders vested before the enactment of the taxing statutes these cannot constitutionally be applied to them under the rule laid down by this Court in Nichols v. Coolidge, 274 U. S. 531. In Nichols v. Coolidge it was held that under the estate tax sections of the Revenue Act of 1919-which tax the privilege of transmission, Nichols v. Coolidge, supra; New York Trust Co. v. Eisner, 256 U. S. 345-property of which a donor had made an outright conveyance several years before the enactment of the statute could not, on his death after its enactment, be included as part of his taxable gross estate at its value at the time of his death. But we are here concerned, not with a tax on the privilege of transmission, not with an attempt to tax a donor's estate for an absolute gift made when no tax was thought of, and to do so at the probably appreciated value which the gift now bears, but with a tax on the privilege of succession, which also may constitutionally be subjected to a tax by the state whether occasioned by death, Stebbins v. Riley, supra, or effected by deed, Keeney v. New York, 222 U. S. 525; Chanler v. Kelsey, supra; Nickel v. Cole, supra. The present tax is not laid on the donor, but on the beneficiary; the gift taxed is not one long since completed, but one which never passed to the beneficiaries beyond recall until the death of the donor; and the value of the gift at that operative moment, rather than at some later date, is the basis of the tax. So long as the privilege of succession has not been fully exercised it may be reached by the tax. See Cahen v. Brewster, 203 U. S. 543; Orr v. Gilman, 183 U. S. 278; Chanler v. Kelsey, supra; Moffitt v. Kelly, supra; Nickel v. Cole, supra. And in determining whether it has been so exercised technical distinctions between vested remainders and other interests are of little avail, for the shifting of the economic benefits and burdens of property, which is the subject of a succession tax, may even in the case of a vested remainder be restricted or suspended by other legal devices. A power of appointment reserved by the donor leaves the transfer, as to him, incomplete and subject to tax. Bullen v. Wisconsin, 240 U. S. 625. The beneficiary's acquisition of the property is equally incomplete whether the power be reserved to the donor or another. And so the property passing to the beneficiaries here was acquired only because of default in the exercise of the power during the donor's life and thus was on his death subject to the state's power to tax as an inheritance. Without considering the other statutes involved, we need not go further than to say that the statute of 1909, imposing the tax because of the failure to exercise the power of appointment, does not deprive plaintiffs in error of their property without due process of law. Affirmed. MILLER ET AL. v. SCHOENE. ERROR TO THE SUPREME COURT OF APPEALS OF VIRGINIA. No. 199. Argued January 20, 1928.-Decided February 20, 1928. * 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. 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. 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. 280. 272 Argument for Plaintiffs in Error. 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. 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. 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. Mr. Randolph Harrison, with whom Messrs. C. W. Bennick and D. O. Dechert were on the brief, for plaintiffs in error. The statute is invalid in that it provides for the taking of private property, not for public use, but for the benefit of other private persons. Buchanan v Worley, 245 U. S. 74. The enforcement of this law against plaintiffs in error, involving the destruction of all the red cedar trees on their land, would result in the taking of property values of considerable magnitude-not less than five to seven thousand dollars as they offered to prove. We submit that the case is in no wise controlled by the decisions cited in Bowman v. Entomologist, 128 Va. 351, in which statutes have been held valid which pro 318°-28-18 Argument for Plaintiffs in Error. 276 U.S. vided for the destruction, as nuisances, of noxious weeds (never of any value for any purpose); or of fruit trees infected with San José scale; or of peach trees affected by the "yellows"; or of apple trees infected with fruit scab, or of oranges affected by "citrus canker," in all of which instances the disease was one so affecting the trees to be destroyed that their value as property was utterly annihilated, and whose destruction, therefore, in order to preserve healthy trees, could in no proper sense be regarded as a taking of property. Such trees, so diseased, become of course, from the standpoint of value, of the same class as noxious weeds, and within the de minimis doctrine. But in the case at bar, the cedar trees are not themselves injured in the slightest degree as a result of their becoming hosts of the cedar rust. Nor is their contribution to the market value of the land on which they grow at all diminished thereby. It seems a wholly untenable view that of two species of valuable property, one may be selected for destruction for the protection of the other from the effects of a disease for whose existence and continuance they are interchangeably responsible. In no case can property be taken for private use; and the taking of private property for public use without due process of law and proper compensation cannot be justified under the guise of the exercise of the police power. Lochner v. New York, 198 U. S. 45; Dobbins v. Los Angeles, 195 U. S. 233; Mehlos v. Milwaukee (Wis.), 146 N. W. 884; Penna. Coal Co. v. Mahon, 260 U. S. 393. Neither the public health, the public safety, nor the public morals or general welfare will be benefited or promoted in any degree by the statute in question. The alleged injury to the apple orchardist "will not justify his shifting the damage to his neighbor's shoulders." Penna. Coal Co. v. Mahon, 260 U. S. 393. |