ZOOLOGICAL SOCIETY 15LLLF.TIX 



ZOOLOGICAL SOCIETY BULLETIN 



Birds 

 C. William Bkeb 

 Lee S. Crandall 



Aqiiarixtm 

 C. H. Town-send. 

 Raymond C. Osbl'bn 



I'uhlishcd hi-nionthly at the Office of the Society. 

 11 Wall Street, New York City. 



Yearly by Mail. $1.00. 



MAILED FREE TO MEMBERS. 



Copyright, 191!,, by the New York Zoological Societi/ 



Each author is responsible for the scientific accuracy 



and the proof reading of his contribution. «, 



Elwin R. Sanborn. Editor. 



Vol. XVII. No. 1. 



JANUARY. 1914 



ATTORNEY-GENERAL CARMODYS AS- 

 SAULT ON THE MIGRATORY 

 BIRD LAW 



On November 8, the Attorney-General for 

 the State of New York set up a new States 

 Rights bogey, and under its benign influence 

 formally and otticially declared that the fed- 

 eral migratory bird law was "unconstitutional." 

 Later on, he declared tliat his opinion would 

 be strictly enforced throughout the State of 

 New York. 



The officers of the New York Zoological So- 

 ciety to whom this opinion was referred im- 

 mediately challenged the legal soundness of it, 

 and disputed its accuracy as to the enforce- 

 ment of the federal law in this State. In the 

 lengthy correspondence witii Mr. Carmod\- that 

 followed, and the exploitation of the subject in 

 the press, the Society's position has been thor- 

 oughly' sustained. In the beginning we as- 

 sumed that the National Government, whether 

 our Conservation Commission co-operates or 

 not, will enforce the federal migratory bird law 

 in the State of New York. Desiring, however, 

 to be well grounded in that belief, we referred 

 the matter to the Attorney-General of the 

 United States, and requested information. 



Promptly we received from the Assistant 

 .\ttorney-General, Mr. Ernest Knaebel, a let- 

 ter wiiich closed with the following statement: 



"It goes without saying that the Attorney- 

 General of tlie State of New York cannot pre- 

 vent the enforcement of a federal statute, and 

 it is not to be assumed tliat he has attempted 

 to do anytiiing of that kind." 



In view of the foregoing, and of tlie further 

 fact that officers of tlie L'nited States Govern- 

 ment are now actually looking after the en- 

 forcement of the migratory bird law in the 

 State of New York, it seems verv desirable 



tii.-it the public should be informed tliat at pres- 

 ent, and until it is set aside by the United 

 States Supreme Court, the federal bird law is 

 fully as constitutional as any other federal law 

 on our statute books. 



Surely no argument is necessary to convince 

 any one save Mr. Carmody that every law is 

 in force until it is regularly and adequately re- 

 pealed, or set aside by formal process from the 

 bench. 



The Attorney-General has invited us to join 

 him in bringing a test case, in order that he 

 may, if possible, prove that the best bird law 

 now in force is unconstitutional ! So long as 

 the LTnited States Government enforces that 

 law. we are entirely satisfied with its status. 

 In any event, however, we hope that this State 

 — the foremost in wild life protection — never 

 will be disgraced by being made the plaintiflf 

 in an action against the L'nited States to de- 

 stroy the McLean law. In time a test case 

 may be brought, but let it be by the enemies 

 of the birds rather than by a representative of 

 the people who did so much to bring the fed- 

 eral bird law into existence. W. T. H. 



I 



A SUPKROFFTCIOUS OFFICT.AI,. 



Despite the fact that the Congress of the United 

 States has [lassed the McLean act for the protec- 

 tion of migratory birds, which seems the greatest 

 measure yet ph<ced upon the statute books of the 

 country for the protection of bird life, and despite 

 the further fact that this law has not yet been held 

 unconstitutional by any properly qualified court, 

 Attorney-General Carmody, of the State of New 

 York, has taken it upon himself to exercise judicial 

 functions for the entire country and to proclaim 

 that the law v.ill not be obeyed in his state. 



Attomey-General Carmody, in an opinion given at 

 the request of the New York State Conservation 

 Commission, has characterized the act as "an unwar- 

 ranted inva.sion by the federal government of a 

 power that belongs under the federal Constitution 

 to the state exclusively." In a letter addressed to 

 Mr. Carmody. Dr. William T. Hornaday, Director 

 of the New York Zoological Park, shows conclu- 

 sively that Mr. Carmody has been f-uperofficious in 

 attempting to usurp the power of the courts. 



Dr. Hornaday makes the very sensible point that 

 a state officer has no right, by mere dictum, to set 

 aside any federal statute, this province only vesting 

 in the federal courts. Thus he says: 



"Surely it requires no legal acumen to con- 

 clude that if a State ,\ttorney-General can, by 

 the writing of an official opinion, set aside a 

 federal statute, then no federal statute is safe 

 in any state. .\s a layman the logic of common 

 sen.se pointed out to me the conclusion that 

 nothing less than a federal court can set aside 

 or nnlllfv a federal statute." 



