United States v. Samples

• Citation: 258 F. 479
• Parties: UNITED STATES v. SAMPLES SAME v. DE LAPP. STATE OF MISSOURI v. HOLLAND, United States Game Warden.
• Decision Date: 02 July 1919
• Court: United States District Courts. 8th Circuit. Western District of Missouri

258 F. 479

UNITED STATES v. SAMPLES

SAME v. DE LAPP.

STATE OF MISSOURI v. HOLLAND, United States Game Warden.

United States District Court, W.D. Missouri.

July 2, 1919

Frank W. McAllister, Atty. Gen., John T. Gose, Asst. Atty. Gen J.G.L. Harvey, of Kansas City, Mo., E.L. Westbrooke, of Jonesboro, Ark., and Samuel W. Moore, of Kansas City, Mo for defendants and complainant.

Francis M. Wilson, U.S. Dist. Atty., of Kansas City, Mo., for plaintiffs and respondent.

VAN VALKENBURGH, District Judge.

December 8, 1916, a treaty between Great Britian and ritian and the United States for the protection of migratory birds was proclaimed by the President (39 Stat 1702). Thereafter, to give effect to this convention Congress enacted a law, approved July 3, 1918 (United States Statutes at Large, vol. 40, pt. 1, c. 128, pp. 755-757 [Comp.St.1918, Append. §§ 8837a-8837m]). This act, among other things, provided that it should be unlawful to hunt, take, capture, or kill, attempt to take, capture, or kill, etc., at any time or in any manner, any migratory bird included in the terms of said convention between the United States and Great Britain, unless and except as permitted by regulations made as therein provided by the Secretary of Agriculture. Thereafter such regulations were made, and duly proclaimed by the President, wherein the open seasons for hunting such birds in all parts of the United States were defined. Canada by an act of Parliament, approved August 29, 1917, gave full effect to said convention and promulgated regulations thereunder May 11, 1918.

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 e 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.

Primarily the state, both as trustee for the rights of all its people and in the exercise of its police power, has control over the right to reduce animals ferae naturae to possession. Manchester v. Mass., 139 U.S. 240, 11 Sup.Ct. 559, 35 L.Ed. 159; The Abby Dodge, 223 U.S. 166-174, 32 Sup.Ct. 310, 56 L.Ed. 390; Geer v. Conn., 161 U.S. 519, 522, 528, 16 Sup.Ct. 600, 40 L.Ed. 793; Ward v. Race Horse, 163 U.S. 504, 16 Sup.Ct. 1076, 41 L.Ed. 244; Patsone v. Penn., 232 U.S. 138, 34 Sup.Ct. 281, 58 L.Ed. 539; United States v. McCullagh (D.C.) 221 F. 288; United States v. Shauver (D.C.) 214 F. 154; Silz v. Hesterberg, 211 U.S. 31, 29 Sup.Ct. 10, 53 L.Ed. 75; Kennedy v. Becker, 241 U.S. 556, 36 Sup.Ct. 705, 60 L.Ed. 1166; State v. Rodman, 58 Minn. 393, 59 N.W. 1098; Smith v. Maryland, 18 How. 71-75, 15 L.Ed. 269; Lawton v. Steele, 152 U.S. 133, 14 Sup.Ct. 499, 38 L.Ed. 385; Carey v. South Dakota, Supreme Court, No. 346, May Term, 1919, 250 U.S. 118, 39 Sup.Ct. 403, 63 L.Ed. 886. And in the absence of treaty there appears to have been no delegation of paramount authority to the federal government. Under the foregoing authorities, therefore, as well as on principle, this act, in the absence of treaty, would be unconstitutional, as exceeding the legitimate powers of Congress; and so it has been held in cases substantially identical. United States v. Shauver (D.C.) 214 F. 154; United States v. McCullagh (D.C.) 221 F. 288. That this power in the state is subject to any valid exercise of authority under the provisions of the federal Constitution is clear; and that a valid exercise of the treaty making power may be recognized as such a valid exercise of authority has been foreshadowed by necessary implication or by express reservation in the decisions of the Supreme Court of the United States. Ware v. Hylton, 3 Dall. 199, 1 L.Ed. 568; Manchester v. Mass., 139 U.S. 240, 11 Sup.Ct. 559, 35 L.Ed. 159; The Abby Dodge v. United States, 223 U.S. 166-174, 32 Sup.Ct. 310, 56 L.Ed. 390; Geer v. Conn., 161 U.S. 519, 522, 528, 16 Sup.Ct. 600, 40 L.Ed. 793; Ward v. Race Horse, 163 U.S. 504, 16 Sup.Ct. 1076, 41 L.Ed. 244; Truax v. Raich, 239 U.S. 33, 36 Sup.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann.Cas.1917B, 283; Kennedy v. Becker, 241 U.S. 556, 36 Sup.Ct. 705, 60 L.Ed. 1166; Smith v. Maryland, 18 How. 71-75, 15 L.Ed. 269; United States v. Forty-Three Gallons of Whisky, 93 U.S. 188-197, 23 L.Ed. 846; Carey v. South Dakota, Supreme Court, No. 346, May Term, 1919, 250 U.S. 118, 39 Sup.Ct. 403, 63 L.Ed. 886. See, also, opinion of Attorney General Griggs, Treaties--Fisheries, 22 Op.Attys.Gen. 214.

[h2] That the power to make treaties is a substantial power of highest degree, delegated by the states to the federal government by the terms of the Constitution, is beyond controversy. The treaty making power has been surrendered by the states and given to the United States. Baldwin v. Franks, 120 U.S. 678-782, 7 Sup.Ct. 656, 32 L.Ed. 766; Fong Yue Ting v. United States, 149 U.S. 711, 13 Sup.Ct. 1016, 37 L.Ed. 905; Chinese Exclusion Cases, 130 U.S. 581, 9 Sup.Ct. 623, 32 L.Ed. 1068. And this extends to state Constitutions and laws as well as to the reserved powers. Ware v. Hylton, 3 Dall. 199, 1 L.Ed. 568; Hoke v. United States, 227 U.S. 321-322, 33 Sup.Ct.

281, 57 L.Ed. 523, 43 L.R.A. (N.S.) 906, Ann.Cas. 1913E, 905.

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 making 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 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.

The validity of this act then depends upon whether this treaty was a valid exercise of federal authority as delegated by the Constitution. A treaty is a compact between two or more independent nations with a view to the public welfare. It is...