PARKER, Circuit Judge.
This suit was instituted to enjoin the state entomologist of Virginia from enforcing against complainant the provisions of the Virginia “Cedar Rust’’ Law. Laws 1914, c. 36. Complainant applied for a preliminary injunction, which was denied. Kelleher v. Schoene (D. C.) 14 F.(2d) 341. The ease is now before-us on final hearing. G. T. French, who hassuceeeded W. J. Sehoene as state entomologist, has been substituted as party defendant,, much testimony has been introduced, and all of the legal questions involved have been, again argued.
Complainant, who is a citizen of the states of Washington, is the owner of a tract of' land of 2,200 acres, known as the Mt. Airy estate, in Ashb’y magisterial district, Shenandoah county, Va. A valuable dwelling house is situate on the estate, and on the-20 acres surrounding it are a large number-of cedar trees, which add greatly to the beauty of the place. On other parts of the-land are a number of red cedars, which have some value as furnishing shade for cattle and providing posts for repair of fences. All of the cedars on the 20-aere tract and some of those on other parts of the estate are within-a radius of two miles, but not within a radius-of one mile,” of large and valuable apple orchards, and constitute “host plants” for the-disease known as “cedar rust” of the apple,, described at length in the former opinion in. this case. 14 F.(2d) 347 and 348.
The state entomologist has determined: that these cedars constitute a menace to the-health of apple orchards in the locality, and pursuant to the provisions of the Cedar Rust Law, set forth in full with all amendments-, in the former opinion, he has ordered that-■the trees on the 20-aere tract around the dwelling be treated each season by removing the cedar balls therefrom, and that the remainder of the cedar trees within the two-mile radius be cut down. It is to enjoin the entomologist from proceeding to enforce these orders that this suit has been instituted. Federal jurisdiction is based upon diversity of citizenship, as well as upon the allegation that the statute in question contravenes the Constitution of the United States. Although, the amount recoverable as damages under the-statute would be but a small sum, we think, that the carrying out of- the order of the entomologist would result in a loss to complainant exceeding $3,000, exclusive of interest and costs, and that consequently the case involves the jurisdictional amount.
Complainant contends (1) that the statute is void because it contravenes the due-process and equal protection clauses of the-Fourteenth Amendment to the federal Constitution; (2) that it is void because-vague- and indefinite; and (3) that, in so far as it is applicable to Ashby district, it authorizes-[343]*343destruction of cedars only within a radius of one mile of an apple orchard, which does not embrace the cedars of complainant.
We^need not repeat nor elaborate what was said in our former opinion as to the constitutionality of the statute. On the final hearing much evidence was introduced as to the nature of the cedar rust disease and its destructive effect upon the apple-growing industry. In the light of that evidence we have no doubt that the enactment of the statute was a valid exercise of the police power of the state. Properly considered, it does not authorize the taking of one man’s property for another man’s benefit, but is a reasonable regulation of the use of property in furtherance of the public welfare. It authorizes the destruction of trees, which are shown to be of but comparatively little value, only where they constitute a menace to a great industry of the state.
The state cannot, of course, take one man’s property for the benefit of others; but it can say that in the enjoyment of property the owner shall not use it in such way as to endanger the rights and property of others. It is quite apparent, from the evidence in this case, that one who allows infected cedars to grow upon his land in an apple-growing community is maintaining that which is a constant menace to the business of the community. He no more has the right to use his land in growing such trees than he has to use it as a place for keeping animals afflicted with contagious diseases, or for storing dangerous explosives, or for maintaining a business which endangers the safety, morals, health, or general” welfare of the community.. A full discussion of the authorities bearing upon this question is contained in Bowman v. State Entomologist, 128 Va. 351, 105 S. E. 141, 12 A. L. R. 1121, and note, Miller v. State Entomologist, 146 Va. 175, 135 S. E. 813, and the former opinion in this case, 14 F.(2d) 341.
Complainant places groat reliance upon the decision of the Supreme Court in Eubank v. Richmond, 226 U. S. 137, 32 S. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192, contending that the statute here denies due process and equal protection because under section 2 it provides that the state entomologist shall make inquiry to as•eertain the existence of the disease upon the request in writing of ten freeholders. We think, however, that there is a wide difference between the case of Eubank v. Richmond and the case at bar. In that, ease the Supremo Court held invalid a city ordinance, which required the committee on streets of the city to establish a building line upon the request of the owners of two-thirds of the property abutting on any street and forbade the erection of any building except within the limits thus fixed. In holding the ordinance invalid, the court said:
“It leaves no discretion in the committee on streets as to whether the street line shall or shall not be established in a given case. The action of the committee is determined by two-thirds of the property owners. In othpr words, part of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent. This we emphasize. One set of owners determine not only the extent of use, but the kind of use, which another set of owners may make of their property. In what way is the public safety, convenience or welfare served by conferring such power? The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the proper rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest or even capriciously.”
It is manifest that the principle decided in that case has no application to the case at bar. The only similarity between the two cases is that in each the statute provides for action by public authorities upon request of property owners. In the Eubank Case, however, the request of the property owners was mandatory, and the action by the public( authorities merely carried out their will. Hero the request of the freeholders merely imposes upon the state entomologist the duty of making inquiry and does not control his action. The destruction of cedar trees is authorized only upon his finding that they are the host plant of the cedar rust disease and constitute a menace to apple orchards in the locality. Upon such finding the destruction of the trees is authorized on the ground that they constitute a public nuisance; and the evident purpose of the statute in requiring a request from 10 freeholders before the entomologist is required to make an investigation "is to insure that a considerable portion of the public are affected by the nuisance before setting in motion the machinery for investigating and abating it as such. In this respect the procedure is analogous to that prescribed by section 1520 of the Code of Virginia relating to public nuisances, which provides that upon complaint of 5 or more [344]*344citizens of a county that a public nuisance exists therein a special grand jury shall be summoned to investigate the complaint, and if found to exist to institute proceedings looking to its abatement. Miller v. Entomologist, 146 Va. 184, 135 S. E. 813.
The next point is that the statute is invalid because of vagueness and indefiniteness. This contention is based upon the use of the words “orchard” and “locality,” and may be disposed of in a few words. The word “orchard” has always had a well-understood meaning, and the use of such a term in a statute could not possibly render the statute void for vagueness. Whether the word as used embraces groups of fruit trees not used for commercial purposes, and having but small value, it is not necessary to decide in this ease. There can be no doubt that it embraces such a large commercial orchard as the “Turkey Knob orchard,” which lies within two miles of the Kelleher cedars. Nor is there any vagueness in the use of “locality” in the statute, as that word is interpreted by the Supreme Court of Appeals of Virginia in the Miller Case, 146 Va. at 185 and 186. That this court in the former opinion, before the decision in the Miller Case, may have placed a slightly different interpretation upon the word is wholly .immaterial.
It is too well settled to admit of argument, or justify the citation of authority, that in passing upon the validity of the statute or the rights of the parties thereunder, we are bound by the interpretation of the highest court of the state. The same may be said as to the contention that only such individual cedars are subject to destruction as are shown to be infected by the cedar rust disease, although other cedars near at hand may be shown to be infected. The answer is that the highest court of the state has construed the statute otherwise. Miller v. State Entomologist, 146 Va. at 190, 191, 135 S. E. 813; Bowman v. State Entomologist, 126 Va. 357, 369, 370, 105 S. E. 141, 12 A. L. R. 1121.
The only remaining question in the case, and one which has occasioned us some difficulty, is whether the statute as in force in Ashby district authorizes the destruction of infected cedars within a radius of two miles of an apple orchard, or whether such destruction is authorized only within a radius of one mile. If the latter interpretation is correct, complainant is entitled to relief, as none of his cedars are within the one-mile •radius. An examination of the statute, which with the amendments is set forth in the former opinion, will show that, when it was enacted in 1914, section 1 provided that it should be xml awful for any person to keep alive and standing upon his premises any red cedar tree or trees which are, or may be, the source, harbor, or host plant of the cedar rust disease within a radius of one mile of any apple orchard, and such cedar trees were declared public nuisances, and it was made the duty of the owner to destroy them when directed to do so by the state entomologist. The second section made it the duty of- the state entomologist to make an investigation, upon the request of ten freeholders, to ascertain if there were such infected cedars within a radius of two miles of any apple orchard which constituted a menace to the health of any apple orchard in the locality, and, upon a finding that such was the ease, to notify the owner or owners to destroy them. Subsequent sections contained a local option provision under which the statute might be adopted for counties or magisterial districts by action of the local authorities. Under this provision‘it was adopted for Ashby district in the year 1916. The statute was amended in 1920 (Laws 1920, c. 260) by striking out the word “one” in the first section and substituting “two,” so that it was made unlawfxil to keep infected cedars alive and standing within a radius of two miles of an apple orchard, and such cedars were declared a public nuisance within that radixis.
The contention of complainant is that the statute as originally enacted must be construed as authorizing destruction of cedars only within the one-mile radius, and that the amendment of 1920 did not change the act so far as it affected the Ashby district, for which it had been adopted xtnder the local option provision prior to the amendment. We have given careful consideration to this contention, but we'do not think that either of the propositions upon which it rests is sound. In the first place, although it is true that the first section of the act prescribes a one-mile radius, the action of the entomologist was taken under the second section, which prescribes a two-mile radixis, and we do not think that a proper interpretation of the act requires that we read “one,” instead of “two,” in the second section. In the second place, even' if the act be construed as prescribing a one-mile radius in both sections, we think that xxnquestionably the amendment of 1920 has extended the radius to two miles wherever the act is applicable, whether adopted by the local authorities before or after the amendment.
In our former opinion, we were under the [345]*345impression that the use of “one,” instead of “two,” in the first section of the act, was a clerical error, which, however, we passed by as unimportant, on the ground that the action of tho entomologist was taken nnder the second section. It seems that we were mistaken in assuming that there was a clerical error in tho first section. From the legislative records introduced on the final hearing before ns it appears that, as a matter of fact, the word “one” was substituted for “two” in that section by an amendment introduced on the passage of the act. But, because we have found ¡that there was no error in the first section, it does not follow that there was error in tho second section. There is nothing inconsistent between the two sections, and there is nothing in the act itself or in the history of its passage, which would justify us in ignoring the clear and unambiguous language of the second section. As was said by the Supremo Court of Appeals of Virginia in dealing with the same point in Miller v. Entomologist, 146 Va. 175, 187, 188, 135 S. E. 813, 817:
“Why one mile should have been inserted in the first section of the act (Code, § 885) and two miles in the second section (Code, § 886) is a mere matter of conjecture, with which, in our view of the case, it is unnecessary for us to deal. The subject is discussed in Kellehor v. Seboene, supra. It may be observed, however, in passing, that the first section (Code, § 885) appears to bo a mere declaration of public policy, declaring the infected cedars within one mile to be per se a public nuisance, and might have been omitted, without impairing the completeness and efficiency of the residue of the act.”
It is suggested that we are not bound by tho decision in Miller v. Entomologist on this point because in that case the trees were within the one-mile radius. This is true, but, nevertheless, what is said in that case is entitled to great respect, being an expression by the highest court of the state of Virginia as to the meaning of a statute of that state. Moreover, it is in complete harmony with what we said in our former opinion (14 F.[2d] 346) as follows:
“The first section of the statute is unimportant. If the Legislature had tho power to order tho destruction of any cedar" trees, a declaration by the Legislature that such trees constitute a nuisance could add nothing to its power and could not otherwise be of importance. On the other hand, the second section is of the utmost importance. In it the limits of tho entomologist’s duty and the limits of his power are stated.”
As stated above, there is no conflict between sections 1 and 2 of the act as originally passed. Under both sections red cedar trees, which were or might bo the host plant of tho cedar rust disease, were to be destroyed upon the order of the state entomologist; but in the first section such eodar trees within oí e mile of an orchard were declared a public nuisance, and it was made unlawful for a landowner to allow them to stand upon his promises, whereas, under the second'Section, trees within a radius of two miles were required to be destroyed only after the state entomologist should have made an investigation upon the request of 10 freeholders, and should have determined that they constituted a menace to the health of an apple orchard in the locality. The difference between a section which declares infected cedars per se a nuisance, and their maintenance unlawful, and one which authorizes their destruction upon a finding by a state official that they constitute a menace to apple orchards in the locality, is obvious. It may have been that the Legislature thought that cedar trees, which were the host plants of the cedar rust disease, were so clearly a menace to apple orchards within a radius of one mile as to warrant their being declared public nuisances without further inquiry; whereas, in cases where the orchards were at a greater distance, circumstances such as tho topography of the country, tho direction of air currents, ete., might render them comparatively harmless, and that in such eases there should be a finding by the entomologist that they actually constituted a menace before their owner should be placed in the attitude of maintaining a public nuisance by permitting them to stand.
It is not necessary, however, to inquire as to what motives actuated the Legislature in prescribing a one-mile radius in the first section of the act. We are dealing with the second section, and the language of that section is clear and unambiguous, and the first section conflicts with it in no respect whatever. For us to assume that, because the Legislature changed the radius prescribed by the first section from two miles to one mile, it intended to change tho radius of the second section also, would bo to indulge in a mere guess, unsupported by the language or the history of the aet, and completely at variance with the plain moaning of the language used. We think that it is more reasonable, as well as more respectful to the [346]*346lawmaking body of the state, to assume that, if it had intended to amend the second section at the time it amended the first section, it would have done so. The fact that the Legislature has allowed the second section to remain unamended for over 13 years is certainly some ground for believing that in the language of that section it expressed the exact meaning which it intended.
It is well settled that, when the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to interpretation and construction. The statute must be given its plain and obvious meaning. 25 R. C. L. 962; Com’r of Immigration v. Gottlieb, 265 U. S. 310, 44 S. Ct. 528, 68 L. Ed. 1031; U. S. v. Atchison, etc., R. Co., 249 U. S. 451, 39 S. Ct. 325, 63 L. Ed. 703; Adams Exp. Co. v. Com. of Kentucky, 238 U. S. 190, 199, 35 S. Ct. 824, 59 L. Ed. 1267, Ann. Cas. 1915D, 1167; U. S. v. First Nat. Bk. of Detroit, 234 U. S. 245, 34 S. Ct. 846, 58 L. Ed. 1298; Thornley v. U. S., 113 U. S. 310, 5 S. Ct. 491, 28 L. Ed. 999. And this rule is adhered to, even though the court may think from extraneous circumstances that the Legislature intended to enact something different from what it did enact. 25 R. C. L. 962; Pittsburgh, etc., R. Co. v. Naylor, 73 Ohio St. 115, 76 N. E. 505, 3 L. R. A. (N. S.) 473, 112 Am. St. Rep. 701; Woodbury v. Berry, 18 Ohio St. 456. “It is only where the true meaning of the language used in a statute is doubtful, or so obscure that the meaning of the Legislature cannot be determined by giving the words used their ordinary and natural signification, that resort can be had to the journals or other extraneous sources of information for aid in arriving at the true meaning of the language used in the statute.” Shenandoah Lime Co. et al. v. Governor of Virginia et al., 115 Va. 865, 80 S. E. 753, Ann. Cas. 1915C, 973.
And, the language of the statute being plain and unambiguous, the fact that the state entomologist may have construed it as authorizing destruction of trees within a radius of only one mile of an orchard is without significance. It is only where the statute is ambiguous that weight is given to contemporaneous construction by officials of the executive department. Houghton v. Payne, 194 U. S. 88, 24 S. Ct. 590, 48 L. Ed. 888; U. S. v. Finnell, 185 U. S. 236, 22 S. Ct. 633, 46 L. Ed. 890; St. Paul, etc., R. Co. v. Phelps, 137 U. S. 528, 11 S. Ct. 168, 34 L. Ed. 767; U. S. v. Graham, 110 U. S. 219, 3 S. Ct. 582, 28 L. Ed. 126.
But, even if the statute as originally enacted be construed as authorizing the destruction of cedar trees only within a radius of one mile .of apple orchards menaced by ' them, there can be no doubt that the amendment of 1920 extended the radius to two-miles. As said by Judge McDowell in the-former opinion (14 F.[2d] 346):
“If the original statute had in both the-first and second sections mentioned only a radius of one mile, and had otherwise been expressed as it was expressed, we can think of no constitutional provision which would’ make invalid an amendment making the radius two miles and expressly providing that the amendment should apply in districts-which had previously adopted the original statute, without further action by the county-authorities. The legislative act of grace,, in making the application of the original act optional, could by no possibility, in and of itself, destroy the legislative power to thereafter make laws without regard to the wishes of county authorities. And this power necessarily includes the power to amend existing laws, also without regard to the wishes of county authorities.”
Assuming that the act of 1914 prescribed only a one-mile radius, no one will question,, we think, the power of the Legislature to-extend the radius to two miles within the counties and districts which had adopted it with a one-mile provision. The only question, then, is one of interpretation, viz.: Did the Legislature, when amending the act, intend that it should not apply as amended in the districts which had previously adopted it, without further adoption on their part; or did it intend to amend the act so that, wherever it was in force, it should be in force-as amended? We think that the latter is unquestionably the correct interpretation. The-statute as originally enacted, upon its adoption by the various counties and districts, became the law in those which adopted it.. When the Legislature amended the statute, it changed that law. It did not leave the old-law in existence unaffected by the amendment, as it might have done, and pass a new law for such counties and districts as might thereafter adopt it. It amended the only law which was in existence on the subject, and, as that had become by adoption the law of certain districts, it thereby amended the law of those districts.
In the ease of Miller v. State Entomologist, supra, the contention was made that'as a result of the amendment the original statute was repealed in those districts which had adopted it, but this view was rejected; the court saying:
[347]*347“In the instant ease, as above stated, the only change made was the substitution of the word ‘two’ for the word ‘one’ in section 885 of the Code. The remaining sections on the subject were left unchanged. This did not in any way affect or change what had already been done under the original act, but simply extended the area within which thereafter infected cedars should be deemed, per se, a public nuisance. There is no intimation of any other intention.”
If complainant’s interpretation of the original statute be correct, and if, as held by the Supreme Court of Appeals, the amendment did not effect a repeal of the statute in the districts for which it had previously been adopted, it follows that the amendment extended the radius within those districts to two miles. The only other interpretation supposable is that the amendment left the law prescribing a one-mile limit in effect in such districts and prescribed the two-mile limit only for districts subsequently adopting •the law. This interpretation, however, could not possibly be correct, for the reason that the radius proscribed by the original act was •changed, to two miles, and no law was left upon the statute books prescribing a one-mile radius.
The conclusion that the act as amended should be interpreted as extending the one-mile radius to two miles without further adoption by the local authorities is, we think, not only in accord with reason but also with well-settled rules of interpretation. The rule is well stated in Endlich on Statutes, § 294, quoted with approval by the Supreme Court in Blair v. Chicago, 201 U. S. 400, 475, 26 S. Ct. 427, 446, 50 L. Ed. 801, as follows:
“A statute which is amended is thereafter, and as to all acts subsequently done, to be ■construed as if the amendment had always been there, and the amendment itself so thoroughly becomes a part of the original statute, that it must be construed, in view of the original statute, as it stands after the amendments are introduced and the matters superseded by the amendments eliminated.”
See, also, Black on Interpretation of Laws, p. 357; Stonega Coke & Coal Co. v. Southern Steel Co., 123 Tenn. 428, 131 S. W. 988, 31 L. R. A. (N. S.) 278, 283; University of Utah v. Richards, 20 Utah, 457, 59 P. 96, 77 Am. St. Rep. 928, 932; 25 R. C. L. 907.
The use of the words “as to all acts subsequently done” in the rule quoted from Endlich does not, of course, mean that the ordinary rule of interpretation is to be departed from in the case of statutes subject to local option provisions, but merely that the statute as amended should not be construed so as to give a retroactive effect to the amendment. It is a common practice for state Legislatures to pass general laws as to local matters, and as in the ease at bar, to provide that they shall become the law in the various localities upon adoption by local authorities. It would be productive of the greatest confusion and inconvenience for the courts to adopt as a rule of interpretation that amendments to such general laws are not to be construed as applicable in the localities where such laws have been adopted prior to amendment. The Legislature has the power to pass a local law without submitting it to the approval of the local authorities. The fact that it does submit it to their approval, and makes its operation in the locality conditional thereon, does not, of course, impair the power of subsequent amendment, or require the application of any new or additional rules of interpretation in construing amendments thereto.
Defendant has urged certain matters of procedure as reasons for denying the injunction and dismissing the bill. The points presented are interesting, but we need not pass upon them. For the reasons stated, we think that the statute is valid and constitutional, that it authorizes the destruction of cedar trees within a two-mile radius of an apple orchard upon a proper finding by the entomologist, and that the action of the entomologist in this ease was justified by the facts shown in evidence. It follows that complainant is not entitled to the injunction prayed, and that the bill should be dismissed.
Injunction denied, and bill dismissed.