CALIFORNIA FISH AND GAME. 



117 



constitutional which was approved July 

 3, 1918, to carry out the provisions of 

 the treaty. Those who have appreciated 

 the need for this law rejoice that it 

 has finally been declared constitutional. 



As early as 1904 Hon. George Shiras 

 3d introduced a bill which was defeated. 

 But on March 4, 191s, the Weeks- 

 McLean bill was brought before Con- 

 gress through the efforts of the Inter- 

 state Sportsmen's Protective Association. 

 This association necessarily took an im- 

 portant part in the fight. 



The Weeks-McLean bill provided that 

 the United States Department of Agri- 

 culture should have the right to make 

 regulations for the taking of migratory 

 birds of all kinds. The principal attack 

 made on this new bill was by some of 

 the Middle Western States, Illinois be- 

 ing one of the most prominent. The 

 argument made against the bill, by Illi- 

 nois and other states affected, was that 

 it practically eliminated the sport of 

 duck hunting except for those living on 

 the big rivers and lakes, unless there was 

 a great sufficiency of water during the 

 fall season, an entirely uncertain factor. 

 The Weeks-McLean bill was attacked in 

 the Federal Courts and was held to be 

 unconstitutional by several of the judges 

 in the United States District Courts, with 

 the result that the, government having 

 been appealed to, from the adverse deci- 

 sion in Arkansas, the case eventually 

 reached the Supreme Court. While the 

 act was under discussion the treaty was 

 made between the United States and 

 Great Britain for the protection of migra- 

 tory birds in the United States and 

 Canada. This treaty was enacted by 

 Congress and after the law went into 

 effect the federal government dismissed 

 the appeal in the Supreme Court, as 

 the old act was supplanted by the new 

 one. 



Before further discussing the Migratory 

 Bird Treaty, a brief summary of the 

 provisions of the treaty is inserted as 

 follows : 



(1) The close season on all migratory 

 birds in both countries is between March 

 10 and September 1. 



(2) No open season can exceed three 

 and a half months. 



(3) The season is closed the year 

 round on all migratory insectivorous 

 birds. 



(4) It is unlawful to sell wild ducks 

 and other water-fowl in the markets in 

 either country. 



(5) It is unlawful to rob the nests of 

 the ducks, etc., in Canada. 



Returning to the Migratory Bird 

 Treaty Act and the final settlement in 

 the Supreme Court ; on July 2, 1919, 

 application was made before Judge Arba 

 S. Van Valkenburgh of the United States 

 District Court, at Kansas City, Mis- 

 souri, for a restraining order to pro- 

 hibit United States game wai'dens from 

 enforcing the Migratory Bird Treaty Act 

 in that state. Judge Van Valkenburgh 

 refused. Acting under the authorization 

 of a joint resolution adopted by both 

 branches of the legislature. Attorney 

 General McAllister brought this case of 

 the State of Missouri, Appellant, vs. 

 Raij P. Holland, Uuited States game 

 warden before the Supreme Court (No. 

 609, October Term, 19l9). It was on 

 this case that the Supreme Court, sus- 

 taining the decision of the lower tribunal, 

 handed down the concluding sentiment 

 which determined the constitutionality of 

 the Migratory Bird Treaty Act. McAll- 

 ister, leading the fight against the act, 

 maintained that it trod on the rights 

 of the state. The opinion of the court 

 as delivered by Justice Holmes reads 

 as follows : 



"The state, as we have intimated, 

 founds its claim of exclusive authority 

 upon an assertion of title to migratory 

 birds, an assertion that is embodied in 

 statute. No doubt it is true that as 

 between a state and its inhabitants the 

 state may regulate the killing and sale of 

 such birds, but it does not follow that 

 its authority is exclusive of paramount 

 powers. To put the claim of the state 

 upon title is to lean upon a slender reed. 

 Wild birds are not in the possession of 

 anyone ; and possession is the beginning 

 of ownei'ship. The whole foundation of 

 the state's rights is the presence within 

 their jurisdiction of birds that yesterday 

 had not arrived, tomorrow may be in 

 another state and in a week a thousand 

 miles away. If we are to be accurate 

 we cannot put the case of the state 

 upon higher ground than that the treaty 

 deals with creatures that for the mom- 

 ent are within the state borders, that it 

 must be carried out by officers of the 

 United States within the same territory, 

 and that but for -the treaty the state 

 would be free to regulate this subject 

 itself." 



In further answer to Attorney General 

 McAllister's stand, and concluding the 



