281 F. 546 | D. Mont. | 1922
Ordinarily applications to file in-formations are granted as of course, but these invoking the Migratory Bird Treaty Act (Comp. St. Ann. Supp. 1919, §§ 8837a-8S37m) recollections of the “helldiver” case mentioned in the Yellowstone Bank Case (D. C.) 277 Fed. 71, and semi-apologetic manner of counsel, inspire scrutiny concerning propriety of the proposed prosecutions. In justice to counsel these are of that anomalous class of cases wherein, not the Department of Justice, but some bureau or other, is authorized to investigate and direct prosecutions, wherein counsel has no discretion, but obeys orders (probably some bureau clerk’s) from Washington, in this respect the repository of all power, if not of wisdom in equal degree, and by reason of which counsel is often constrained to prosecute against his better judgment, and to deserved failure.
In the matter of Jonas, it is alleged that in October, 1920, he solcl* “three ducks, one rail, and one sora, migratory game birds,” and that in November, 1921, he purchased one loon, all “without being per-, mitted so to do by any regulation made.” The evidence is that Jonas, a taxidermist, sold three mounted ducks, and for mounting for hire received and retained for a few days, until it spoiled and was thrown away, one loon in the flesh. In respect to the sale, the charge fails for like reasons to those defeating the charge of possession in Sharp’s case aforesaid.
In the matter of the separate informations against Miles, Engel, and Hendrickson, it is alleged that in November, 1921, and after sunset, they severally hunted wild ducks, contrary to the regulation. The
It is noteworthy that diligent wardens detect no more serious violations of this Treaty Act. Apparently the people are, as they should be, well disposed to it and to state game laws in general. In fact, violation of the former is generally also of the latter; and it is better policy, federal and state, that the charge be laid by virtue of the latter only and before the nearest justice of the peace. In the absence of serious offenses, the prosecution of the trivial is not necessary to justify and perpetuate the offices of wardens, necessary as they are in any event. Even as the others, to file these informations leave is denied.