United States v. McCullagh

• Decision Date: 20 March 1915
• Docket Number: 4196-4198.
• Citation: 221 F. 288
• Parties: UNITED STATES v. McCULLAGH. SAME v. SAVAGE. SAME v. SAPP.
• Court: U.S. District Court — District of Kansas

221 F. 288

UNITED STATES v. McCULLAGH. SAME v. SAVAGE. SAME v. SAPP.

Nos. 4196-4198.

United States District Court, D. Kansas, First Division.

March 20, 1915

Fred Robertson, U.S. Atty., of Topeka, Kan., for the United States.

J. H Harkless, of Kansas City, Mo., for defendant McCullagh.

John F Philips, of Kansas City, Mo., amicus curiae.

POLLOCK District Judge.

The information filed against defendant in this case reads as follows:

'Comes now Fred Robertson, United States attorney for the district of Kansas, leave of court having first been obtained and by authority and direction of the Attorney General gives the court to understand and be informed, upon the oath of A. S Rickner, a federal game warden for the United States Department of Agriculture, that in the county of Cherokee, in the Third division of the district of Kansas and within the jurisdiction of this court, one George L. McCullagh did then and there, on or about the 2d day of April, 1914, unlawfully, knowingly, and willfully shoot and kill forty migratory wild ducks, in violation of the rules and regulations for the protection of migratory birds adopted by the United States Department of Agriculture, and approved by the President of the United States, and promulgated and made public October 1, 1913; said rules and regulations having been made, published, and declared by authority of the act of Congress approved March 4, 1913; and this he, the said George L. McCullagh, did contrary to the form of the statute in such cases made and provided and against the peace and dignity of the United States of America.'

It is thus seen the sole offense charged by the information against defendant lies in the fact that he killed wild duck on April 2, 1914, a date falling within the open season for such game as provided by the laws of the state.

The act of Congress on which this prosecution is based is as follows:

'All wild geese, wild swans, brant, wild ducks, snipe, plover, woodcock, rail, wild pigeons, and all other migratory game and insectivorous birds which in their northern and southern migrations pass through or do not remain permanently the entire year within the borders of any state or territory, shall hereafter be deemed to be within the custody and protection of the government of the United States, and shall not be destroyed or taken contrary to regulations hereinafter provided therefor. The Department of Agriculture is hereby authorized and directed to adopt suitable regulations to give effect to the previous paragraph by prescribing and fixing closed seasons, having due regard to the zones of temperature, breeding habits, and times and line of migratory flight, thereby enabling the department to select and designate suitable districts for different portions of the country, and it shall be unlawful to shoot or by any device kill or seize and capture migratory birds within the protection of this law during said closed seasons, and any person who shall violate any of the provisions or regulations of this law for the protection of migratory birds shall be guilty of a misdemeanor and shall be fined not more than one hundred dollars or imprisoned not more than ninety days, or both, in the discretion of the court. The Department of Agriculture, after the preparation of said regulations, shall cause the same to be made public, and shall allow a period of three months in which said regulations may be examined and considered before final adoption, permitting, when deemed proper public hearings thereon, and after final adoption shall cause the same to be engrossed and submitted to the President of the United States for approval: Provided, however, that nothing herein contained shall be deemed to affect or interfere with the local laws of the states and territories for the protection of non-migratory game or other birds resident and breeding within their borders, nor to prevent the states and territories from enacting laws and regulations to promote and render efficient the regulations of the Department of Agriculture provided under this statute. ' Act March 4, 1913, c. 145, 37 Stat. 847 (Comp. St. 1913, Sec. 8837).

To this information defendant demurs. The question presented by the demurrer involves alone the constitutional validity of the act.

In ruling this question certain fundamental principles so firmly established in the laws of this country as to become truisms must be borne in mind. As the act assailed on constitutional grounds expresses the deliberate action and intent of a co-ordinate branch of government, it must be either upheld and enforced or its invalidity must be made to appear so clearly as to be beyond all question of doubt.

Our national Constitution is one of purely delegated powers. When the validity of an act asserted to have been passed in pursuance of power thereby conferred on Congress is challenged in due form and proper manner, as in this case, the plaintiff must point to some provision therein found which either in express terms or by necessary implication authorizes and sustains the act. When the government engages her citizens in litigation in her courts, the cause of each is entitled to and must receive at the hands of the court the same fair and just consideration and judgment. It is neither the purpose nor the desire of government that any of her citizens shall in any manner be interfered with in the exercise of any right, except such interference be for the common good and in pursuance of lawful authority.

In the present case the government asserts the power by Congress exercised in the passage of the act challenged is found in either what is commonly called the general welfare clause (subsection 2 of section 3, article 4, of the Constitution), which reads as follows:

'The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state'

-- or to be authorized by the commerce clause, which reads:

'To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.'

It is quite evident the thought in the mind of Congress which gave rise to the passage of the act in question, and the common good thereby sought to be accomplished, was the preservation of the migratory bird life of the country from extermination as has in the past been the lot of some species of its wild game, animals, and birds. However, no matter how laudable the purpose of Congress in the passage of the act in question may have been, or how great the ultimate end sought thereby to be attained for the common good, such end does not justify the means employed, if it be found on examination to lie beyond constitutional bounds. In such event the only proper course lies in amendment of the Constitution.

There can be no doubt but that a uniform system of laws on the subjects of marriage and divorce in this country would terminate many serious evils and accomplish inestimable good. Had Congress the power to so legislate a few comparatively simple provisions would accomplish this much desired result. However, this has been neither done nor attempted by Congress. The same may be said of many subject-matters of legislation under our system of government lodged in the state, but denied to the nation. As, then, the will of Congress to accomplish the much-desired result, without the power of accomplishment, will not suffice, no matter how great the exigencies of the case, or how impotent the powers of the states to protect may be, therefore those provisions of the Constitution relied upon by the plaintiff in this case to confer the power on Congress attempted to be exercised by it in the passage of this act in question must be examined in the light of reason and authority controlling here before a determination of the question presented can be reached.

In so far as the commerce clause is concerned, it does not appear much reliance is placed thereon by the plaintiff in its briefs and argument, and this, no doubt, for the reason contention on this score would seem to have been foreclosed by the Supreme Court in such exhaustive decisions as to leave nothing more to be said on this head, as reference to a few leading cases will show. In the case of Geer v Connecticut, 161 U.S. 519, 16 Sup.Ct. 600, 40 L.Ed. 793, it appears the state of Connecticut had enacted a statute for the protection of wild game of that state. Among other provisions the act prohibited, under penalty, the transportation of game out of the state. Geer, a citizen of Massachusetts, went into the state of Connecticut and there had in his possession wild grouse taken in compliance with the privilege to so do accorded by the laws of the state. Having the game so taken in his possession, he was proceeding contrary to the provisions of the act under which it was taken to carry it as his individual personal property out of the state, for which offense he was tried, convicted, and sentenced under the laws of the state. The case was carried to the Supreme Court on the sole ground as the grouse had been lawfully taken in the state of Connecticut, in pursuance of her laws, in face of the commerce clause of the national Constitution, the state of Connecticut was without power to prevent him, as owner of his individual personal property, from carrying it in interstate commerce. In an exhaustive review of this question, as shown by the opinion delivered by Mr. Chief Justice White, certain principles were laid down as the settled law of the land: (1) The wild animal and bird life present in a state is the common heritage of all the people of that...