United States v. Shauver

• Decision Date: 25 May 1914
• Citation: 214 F. 154
• Parties: UNITED STATES v. SHAUVER.
• Court: U.S. District Court — Eastern District of Arkansas

214 F. 154

UNITED STATES v. SHAUVER.

United States District Court, E.D. Arkansas, Jonesboro Division.

May 25, 1914

On Motion for Rehearing, July 9, 1914.

W. H Martin, Asst. U.S. Atty., of Hot Springs, Ark., and J. H Acklen, of Nashville, Tenn., for the United States.

E. L Westbrooke, of Jonesboro, Ark., for defendant.

TRIEBER District Judge.

The defendant demurs to the indictment in this cause, which charges him with a violation of that part of the Appropriation Act for the Department of Agriculture, approved March 4, 1913 (37 Stat. 828, 847, c. 145), known as the 'migratory birds' provision, and the regulations made by the Department of Agriculture in pursuance thereof, and which have been approved by the President. That provision reads:

'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 $100 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 nonmigratory game or other birds resident and breeding within their borders, nor to prevent the states and territories from enacting laws and and regulations to promote and render efficient the regulations of the Department of Agriculture provided under this statute.'

In pursuance of this authority the Department of Agriculture has adopted suitable regulations, which have been approved by the President. The only ground of the demurrer is that the act is unconstitutional.

That the national Constitution is an enabling instrument, and therefore Congress possesses only such powers as are expressly or by necessary implication granted by that instrument, is not questioned. Unless, therefore, there is some provision in the national Constitution granting to Congress either expressly or by necessary implication the power to legislate on this subject, the act cannot be sustained.

The deference due from the judiciary to the other co-ordinate departments of the government has made the courts, when the constitutionality of an act of the legislative department is attacked, to yield rather than encroach on the legislative domain. Only if the question is practically free from real doubt will the courts declare an act of the Legislature unconstitutional. The fact that the statute goes to the verge of the constitutional power is not enough; it must appear clearly that it is beyond that power to justify a court to declare it void. These principles are so well settled by an unbroken line of decisions of all the American courts that it is unnecessary to cite authorities to sustain them.

It is equally well settled that as to all internal affairs the states retained their police power, which they, as sovereign nations, possessed prior to the adoption of the national Constitution, and no such powers were granted to the nation. Cooley, Const. Lim. 574; Patterson v. Kentucky, 97 U.S. 501, 503, 24 L.Ed. 1115; Covington, etc., Bridge Co. v. Kentucky, 154 U.S. 204, 210, 14 Sup.Ct. 1087, 38 L.Ed. 962; United States v. Boyer (D.C.) 85 F. 425, 434.

But it is now equally well settled that the United States does possess what is analogous to the police power, which every sovereign nation possesses, as to its own property (Camfield v. United States, 167 U.S. 518, 525, 17 Sup.Ct. 864, 42 L.Ed. 260), and to carry into effect those powers which the Constitution has conferred upon it (In re Debs, 158 U.S. 564, 581, 15 Sup.Ct. 900, 39 L.Ed. 1092; Light v. United States, 220 U.S. 523, 536, 31 Sup.Ct. 485, 55 L.Ed. 570; Hoke v. United States, 227 U.S. 308, 323, 33 Sup.Ct. 281, 57 L.Ed. 523, 43 L.R.A. (N.S.) 906, Ann. Cas. 1913E, 905). It is not claimed by counsel for the government that the power to enact such legislation exists under the commerce clause of the Constitution, but it is claimed that subsection 2 of section 3, art. 4, of the Constitution, which is as follows, grants the necessary power:

'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.'

It is also claimed that it is one of those implied attributes of sovereignty in which the national government has concurrent jurisdiction with the states; that it is a dormant right in the national government; and, where the state is clearly incompetent to save itself, the national government has the right to aid. To sustain the latter proposition stress is laid on the fact that it is impossible for any state to enact laws for the protection of migratory wild game, and only the national government can do it with any fair degree of success; consequently the power must be national and vested in the Congress of the United States. A similar argument was presented to the court in Kansas v. Colorado, 206 U.S. 46, 89, 27 Sup.Ct. 655, 664 (51 L.Ed. 956), but held untenable. Mr. Justice Brewer, speaking for the court, disposed of it by saying:

'But the proposition that there are legislative powers affecting the nation as a whole, which belong to, although not expressed in, the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the amendment, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the tenth amendment. This amendment, which was seemingly adopted with prescience of just such a contention as the present, disclosed the wide-spread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that, if in the future further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. * * * Its principal purpose was not the distribution of power between the United States and the states, but a reservation of the people of all powers not granted.'

This disposes of that contention.

Are migratory birds, when in a state on their usual migration, the property of the United States or of the states where they are found? If they are the property of the nation, the states would have no power to regulate, control, or prohibit the hunting or killing of them. But the rule of law which all the American courts have recognized is that animals ferae naturae, denominated as game, are owned by the states, not as proprietors, but in their sovereign capacity as the representatives and for the benefit of all their people in common. This principle has not only been maintained by all the highest courts of the states in which the question has arisen, but has had the approval of the Supreme Court of the United States in every case which has come before it. Martin v. Waddell, 16 Pet. 367, 10 L.Ed. 997; McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248; Smith v. Maryland, 18 How. 71, 74, 15 L.Ed. 269; Manchester v. Massachusetts, 139 U.S. 240, 258, 11 Sup.Ct. 559, 35 L.Ed. 159; Lawton v. Steele, 152 U.S. 133, 14 Sup.Ct. 499, 38 L.Ed. 385; Geer v. Connecticut, 161 U.S. 519, 16 Sup.Ct. 600, 40 L.Ed. 793; The Abby Dodge, 223 U.S. 166, 32 Sup.Ct. 310, 56 L.Ed. 390.

In McCready v. Virginia, it was said:

'In like manner, the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the ownership is that of the people in their united sovereignty.' It is true that this quotation was not absolutely necessary for the determination of the issues in that case, but the question of ownership of the fish in tide water was indirectly involved, and the learned Chief Justice who evidently deemed it necessary to...