United States v. Selkirk

• Decision Date: 14 July 1919
• Citation: 258 F. 775
• Parties: UNITED STATES v. SELKIRK.
• Court: U.S. District Court — Southern District of Texas

258 F. 775

UNITED STATES v. SELKIRK.

United States District Court, S.D. Texas, Galveston Division.

July 14, 1919

Maco &amp Minor Stewart, of Houston, Tex. (albert De Lange, of Galveston, Tex., of counsel), for defendant.

D. E Simmons, U.S. Dist. Atty., and E. P. Phelps, Asst. U.S. Dist Atty., both of Houston, Tex.

HUTCHESON District Judge.

In this cause the defendant, by demurrer to an information filed by the United States attorney, seeks to have declared unconstitutional the Migratory Bird Act of July 3, 1918 (40 Stat. 755, c. 128 (U.S. Comp. St. 1918, Sec. 8837a appendix)), entitled 'An act to give effect to the convention between the United States and Great Britain for the protection of migratory birds, concluded at Washington, August 16, 1916, and for other purposes' (the treaty referred to will be found in 39 Stat. 1702). While the demurrers present various forms of attack on the law, the gist of the contention is that, as the matter of the regulation of wild game is lodged in and a part of the sovereign power of the states and has not been delegated to the central government by the Constitution, the Congress is without power to legislate on the subject, and that the mere fact that the act is passed to give effect to a convention between the United States and Great Britain will not furnish Congress the power which without the treaty it clearly did not have, as I have no doubt that the cases in the federal and state courts holding the Migratory Bird Act of March 4, 1913 (37 Stat. 847, c. 145 (Comp. St. Sec. 8837)), invalid, were correctly decided.

I cannot, however, assent to the view of counsel that the present act is likewise invalid.

'The constitutional provisions relating to the treaty power are: Article 2, Sec. 2, cl. 2, which, among the powers granted to the President, provides that: 'He shall have power, by and with the * * * consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.'

'Article 1, Sec. 10, cl. 1, provides that: 'No state shall enter into any treaty, alliance, or confederation.'

'The Tenth Amendment to the Constitution provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.' The Constitution (article 6, cl. 2) provides:

'This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.'

It could not be for a moment contended that two sovereign states could not by treaty regulate the taking of migratory birds which pass from the one country to the other, and with the state of Texas still a sovereign republic, instead of a constituent part of the United States, there is no doubt that it could have concluded a treaty with Great Britain and...