The Audubon Societies 



483 



ever, the several states have not such con- 

 trol or power over it as renders possible 

 its protection by the states for the benefit 

 of the people. While such animals are on 

 other territory than its own, a state has 

 absolutely no power over them, nor can 

 it enter into treaties ^\'ith other govern- 

 ments for their protection, or even make 

 agreements concerning them with other 

 states, without consent of Congress. For 

 the greater part of the time, therefore, 

 a particular state has, because of e.xpress 

 provisions of the Constitution, no power 

 to control or protect migratory wild life. 

 The Federal Government alone can pro- 

 tect and regulate, at all times, animals 

 fera naturce remaining permanently within 

 the limits of the United States yet 

 migrating over several states; and it is 

 also the only government that can enter 

 into treaties with foreign countries where 

 such animals migrate beyond the limits 

 of the United States. Migrator}^ birds, 

 therefore, being property' of the United 

 States, Congress, by virtue of the author- 

 ity granted by the Constitution to "make 

 all needful rules and regulations respect- 

 ing the territory or other property belong- 

 ing to the United States," may pass any 

 laws it may deem proper for their pro- 

 tection, although such laws may have the 

 quality of police regulations. 



Under the second head (the Commerce 

 clause of the Constitution) the following 

 facts are presented: 



Should it be admitted, for the purposes 

 of this argument, that the title to migra- 

 tory birds while actually within a state is 

 in such state, then of necessitj^ title there- 

 to must pass from one state to another 

 as such birds cross the boundary between 

 the states. Thus, under such theory, a 

 migratory bird flying from one state into 

 another, passes from the ownership of the 

 former into that of the latter state. If this 

 be true, a thing recognized by the courts as 

 an article of commerce when passing 

 between individuals passes from the 

 ownership of individuals in their collective 

 capacity to other individuals in their col- 

 lective capacity, the ownership of the 

 states being merely ownership in trust for 

 their respective citizens. 



Such transmission of title, in connec- 

 tion with the actual passage of the birds 

 from one state to another, constitutes, it 

 is submitted, interstate commerce within 

 the meaning of the Constitution. 

 "Transit" means "the act of passing over 

 or through; passage." {New Standard 

 Dictionary.) The word "commerce," as 

 used in the Constitution and defined by 

 this court, is sufficiently comprehensive to 

 include the periodical and systematic 

 "passage" of migratory birds among the 

 states. Therefore, under the power to 

 regulate commerce among the states. 

 Congress was acting entirely within its 

 authority in passing this act for the pro- 

 tection of migratory birds. 



11: l'R(.,\i;iI( ik\ — AX ANlLLDl't DIS- 

 APPEARING FROM OUR PLAINS 



