258 F. 479 | W.D. Mo. | 1919
December 8, 1916, a treaty between Great Britain and the United States for the protection
The defendants Samples and De Lapp were indicted upon the charge of having violated said act of Congress, passed to give effect to the treaty aforesaid, and the regulations made thereunder, it being provided in said act that such violation shall be deemed a misdemeanor, carrying a penalty of fine or imprisonment or both. The defendants have 'interposed to these indictments demurrers containing several specifications, the gist of which - is that the act in question is unconstitutional and. void, because the subject-matter, thereof is exclusively within the property rights and police powers of the state; because no provision can be found in the federal Constitution for the protection of migratory birds; and because the convention between the United States and Great Britain exceeds the limitations of the treaty making powers.under the Constitution, and is therefore in violation of the Constitution itself.
After the return of these indictments the state of Missouri, through its Attorney General, filed its bill in equity, seeking to restrain the Game Warden of the United States, in this jurisdiction, from arresting or prosecuting, or attempting to arrest and prosecute, any person for taking, killing, or using wild game within the borders of the. state of Missouri, and from in any wise enforcing or attempting to enforce the aforesaid act of Congress known as the Migratory Bird Treaty Act, or any regulations or orders of the Secretary of Agriculture of the United States made or pretended to be made thereunder; and from in any wise interfering with the exercise of the rights and privileges granted by complainant to its citizens in the assumed exercise of its sovereign and reserved power. The respondent, through the United States District Attorney, filed his motion to dismiss this bill. Both demurrers and motion were heard together; the former will be first considered.
The issues tendered by the pleadings present two questions: One, the validity of the law standing by itself as affecting the relative powers of the federal government and of the states; the other, the status of the treaty, to give effect to which the so-called Migratory Bird Treaty Act was passed.
Mr. John C. Calhoun, foremost among those insisting upon the fullest sovereign powers of the states, while Secretary of State, made this statement in an official document:
“The treaty mailing power has indeed been regarded to be so comprehensive as to embrace, with few exceptions, all questions that can possibly, arise between us and other nations and which can only be adjusted by their mutual consent, whether the subject-matter be comprised among the delegated or the reserved powers.” Crandall on Treaties (2d Ed.) par. 105, p. 247.
Where, then, any power has been granted to the federal government by the Constitution, to be exercised through legislation by Congress, or as an incident of the legitimate treaty making power, it is superior to state Constitutions and state laws, and to all other powers, including police powers, ordinarily belonging to the states. All such must be'modified, curtailed, or, in a proper case, suspended, to insure the full and complete exercise of that superior power which has been delegated by the Constitution to the central government.
“While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to' foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.” Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. 623, 32 L. Ed. 1068.
• It must be remembered that we are here considering the power of the federal government in its relation to the several states. In such case, it is necessary only that the grant of power to the former and its legitimate exercise shall be established. Thereupon all elements of state sovereignty, however reserved, become at once subordinate. No other construction is possible if the Constitution is to be vindicated as the supreme law of the land. Undoubtedly, we may conceive of many rights of the states over which the federal government through its power to make treaties can have no control. A number of such are stated in Pierce v. State, 13 N. H. 576. The subject-matter of negotiation must be one which falls naturally and logically into recognized classification. It must not be arbitrary, disconnected, and remote from international intercourse.
A. treaty is invalid if in violation of or inconsistent with the Constitution. Butler on Treaties, vol. 2, par. 455, p. 350; Crandall on
And this being true, the court, in a proper case where the rights of citizens are involved, mav so declare. Michie’s Encyc. of U. S. Sup. Ct. Rep., vol. 11, p. 640; Head Money Cases, 112 U. S. 580-598, 5 Sup. Ct. 247, 28 L. Ed. 798; In re Cooper, 143 U. S. 473, 501, 503, 12 Sup. Ct. 453, 36 L. Ed. 232; Jones v. Meehan, 175 U. S. 32, 29 Sup. Ct. 1, 44 L. Ed. 49.
The general rule as to limitations upon the treaty making power is most comprehensively stated in Geofroy v. Riggs, 133 U. S. 266, 10 Sup. Ct. 295, 33 L. Ed. 642. If this pronouncement, in any view, could properly be regarded as obiter, nevertheless it has been so frequently and approvingly restated that it must now be regarded as the settled rule in the courts of this country.
“Tlic treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and ol! that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. * * * But with these exceptions, * * * there is no limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.” Geofroy v. Riggs, 133 U. S. 266, 10 Sup. Ct. 297, 33 L. Ed. 642.
As has been frequently stated, “An attempt to enumerate these limitations in more specific terms than here used by Mr. Justice Field would be idle.” It is sufficiently comprehensive to include all acts by the treaty making power which might seek or tend to impair or destroy the constitutional functions exclusively conferred upon this government and its several departments.
The case of free-swimming fishes in international waters is one which appeals more readily to the common understanding, because there international contact is apparent. But does the case of migratory birds differ in principle from that of migratory fishes or other similar forms of wild life? The term “migrate” as used in this connection is thus defined:
“To pass periodically from one region or climate .to another for feeding or breeding. * * * The majority of birds of the north temperate and arctic regions perform regular migrations, which are dependent on food supply more than on temperature, moving north in the spring and south in the fall.”
Seals go regularly to their breeding and feeding grounds. Fishes migrate during the spawning season. Migratory birds nest in the north and feed in the south with the regularity of the seasons. The movements of all these forms of life may be computed almost with mathematical precision. Their courses through the water and through the air are almost as well defined as though marked by Old Trails’ monuments. Their movements are dictated by neither whim nor caprice, but are impelled by an instinct which inheres in the law of their being. If this be true, what distinction can we draw between the fish which swims through one of the great natural elements and the bird which flies through another? The controlling consideration is the effect', upon the mutual interests of the two nations concerned. By this treaty the United States profits by the protection which is accorded such wild fowl in Canada during the nesting and feeding seasons before the migration sets in to the south. Canada gains by the same protection which is thrown about the same birds during their stay within the United States. The people of both countries, of our entire Union and of all the states, benefit by the mutual and reciprocal advantages which accrue from this arrangement. If this be so, then the subject-matter comes properly within the treaty making power. If it curtails any right which would otherwise be lodged in an individual state, it does so only through the full and untrammeled exercise of a federal power to negotiate with a foreign government. The conflict of jurisdiction, if one can be said to exist, differs in no respect from that which is experienced in the exercise of any power concededly lodged in the federal government which comes in con
From the foregoing, it follows necessarily that the demurrers to the indictments must be overruled.