United States v. Rockefeller

• Decision Date: 30 August 1919
• Docket Number: 3342.
• Parties: UNITED STATES v. ROCKEFELLER.
• Court: U.S. District Court — District of Montana

260 F. 346

UNITED STATES v. ROCKEFELLER.

No. 3342.

United States District Court, D. Montana.

August 30, 1919

E. C Day, U.S. Atty., and W. W. Patterson, Asst. U.S. Atty., both of Helena, Mont.

William I. Lippincott, of Butte, Mont., for defendant.

BOURQUIN District Judge.

The information charges that defendant in a power boat took wild ducks, contrary to regulations authorized by statute (Act July 3, 1918, c. 128, 40 Stat. 755 (Comp. St. 1918, Append. Secs. 8837a-8837m)) effectuating the Migratory Bird Treaty (39 Stat. 1702) with Great Britain. Defendant demurs, upon the ground that regulations, statute, and treaty are unconstitutional, for that they purport to regulate the taking of game birds, whereas such regulation is vested in the states alone as part of their reserved police powers.

The Supreme Court has declared that fish and game birds, like air and water, are of the negative community, with common right in all persons to take of them; that this right is not property capable of taxation and transfer, save when converted into a profit a prendre; that fish and game become property when reduced to possession; that their preservation and regulation of taking thereof are vested in the states as part of the latter's reserved police powers, but 'subject, of course, to any valid exercise of authority under the provisions of the federal Constitution. ' Kennedy v. Becker, 241 U.S. 562, 36 Sup.Ct. 705, 60 L.Ed. 1166; Silz v. Hesterberg, 211 U.S. 41, 29 Sup.Ct. 10, 53 L.Ed. 793; Geer v. Conn, 161 U.S 519, 16 Sup.Ct. 600, 40 L.Ed. 793; Lawton v. Steele, 152 U.S. 133, 14 Sup.Ct. 499, 38 L.Ed. 385. And see Oil Co. v. Indiana, 177 U.S. 209, 20 Sup.Ct. 576, 44 L.Ed 729.

The power to enter into treaties is an 'authority, under the provisions of the federal Constitution,' vested in the United States alone.

Is this treaty a 'valid exercise' thereof? Before the Constitution the states severally possessed plenary treaty-making power, and by the Constitution they were shorn of the whole thereof, and the larger part of it was vested in the United States; the larger part, not all, for it is clear a state by treaty could have entered into some contracts affecting itself which the United States cannot. This power extends to all subjects usual to treaties, to all within the international domain, to all of international concern and negotiation, but limited, nevertheless, to subjects and treaties not inconsistent with our system of government, with the relations of the states and the United States, with the federal Constitution. Treaties in relation to such subjects, and within such limits, by the federal Constitution are made of the supreme law of the land, to which all state Constitutions, statutes, and rights yield to the extent of any conflict. Gibbons v. Ogden, 9 Wheat. 211, 6 L.Ed. 23; License Cases, 5 How. 504, 12 L.Ed. 256; United States v. Whisky, 93 U.S. 197, 23 L.Ed. 846; Hauenstein v. Lynham, 100 U.S. 488, 25 L.Ed. 628; Geofroy v. Riggs, 133 U.S. 267, 10 Sup.Ct. 295, 33 L.Ed. 642; Downes v. Bidwell, 182 U.S. 312, 21 Sup.Ct. 770, 45 L.Ed. 1088; Compagnie Francaise v. Board, 186 U.S. 388, 22 Sup.Ct. 811, 46 L.Ed. 1209.

This supremacy of federal authority to that of the states is not peculiar to treaties, but extends to all 'valid exercise of authority under the provisions of the federal Constitution. ' The states themselves (in the sense of their people) so provide in the federal Constitution ordained and established by them.

To illustrate in the matter of treaties, though it is of the reserved powers of states to control the inheritance of real property, any their laws that aliens cannot inherit yield to treaties to the contrary. See Blythe v. Hinckley, 180 U.S. 340, 21 Sup.Ct. 390, 45 L.Ed. 557, and cases cited, and United States v. Whisky, supra.

Though it is of the reserved power of states to allow, prohibit, and regulate the introduction and sale of intoxicating liquors, they cannot allow nor prohibit such introduction contrary to treaty, nor allow sale in parts of their territory where treaties otherwise provide. License Cases, 5 How. 504, 12 L.Ed. 256; United States v. Whisky, 93 U.S. 197, 23 L.Ed. 846.

Though it is of the states' reserved powers to protect health and to establish and regulate quarantine, their laws to those ends yield to the extent of any conflict with treaties....